UK: Court of Appeal refuses to extend legal professional privilege (“LPP”) to non-lawyers

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Clients who obtain advice from non-lawyers may not be able to prevent the disclosure of information given to advisors.

What is legal professional privilege?

LPP applies to confidential communications which pass between a client and his lawyer and which have come into existence for the purpose of giving or receiving legal advice.  The application of privilege can be both extended and restricted by statute.  However, it currently offers the advantage of not having to disclose communications subject to it to any third party, for example, HM Revenue & Customs.

LPP comprises both legal advice privilege and litigation privilege.  This case looks at legal advice privilege.

Therefore, if, for example, HM Revenue & Customs were to issue a notice requiring the provision of certain papers relating to a company’s or an individual’s tax affairs, then assuming that the papers were subject to LPP, the documents would not have to be provided.

Why is privilege relevant to me?

The Court of Appeal confirmed that LPP applies only to qualified lawyers and not to other professionals, for example, accountants who provide tax advice.  Therefore, if tax advice is sought from a lawyer the client is protected from having to disclose qualifying communications in which the client’s tax affairs are discussed.  If the same advice was provided by an accountant or other non-lawyer no such protection from disclosure could be claimed.

It appears to be the case that where a law firm employs accountants or other non-lawyers that any advice provided by such employees should be sent to the client by a lawyer to ensure that LPP applies.

Commentary

This case highlights an advantage of obtaining tax advice from a qualified lawyer.  The maintenance of confidentiality in the lawyer/client relationship enables clients to have greater comfort about the security of personal and sensitive information they may wish to remain that way.

Resources

R (on the application of Prudential plc and another) v Special Commissioner of Income Tax and another [2010] EWCA Civ 1094

For further information or to discuss the issues raised, please contact Guy Abbiss (guy.abbiss@abbisscadres.com) or Stephen Wright (stephen.wright@abbisscadres.com) on +44 20 3051 5711.