is legal professional privilege?
professional privilege (‘LPP’) is a legal principle that protects all
communications, in connection with legal advice, passing between a professional
legal adviser and their clients from being disclosed to third parties without
the prior permission of the client. The aim of this principle is to protect a
client who wants to give complete disclosure to their legal adviser even if
those communications may prejudice them in the future.
of the recent Prudential decision
a tax dispute between Prudential and HM Revenue & Customs, Prudential
claimed that the advice of their accountants in relation to tax law could be
covered by LPP thereby protecting that information from being disclosed to
claim was refused because the privilege did not extend to legal advice given by
a professional who was not a qualified lawyer and the Court of Appeal upheld
that decision so the Prudential appealed to the Supreme Court.
Supreme Court ruling confirmed that LPP will continue to only apply to legal
advice given by qualified lawyers and that communications with other
professionals such as accountants will not be protected.
for the decision
court was concerned that an extension of LPP to other professionals would lead
to uncertainty as the court would need to decide whether the person came under
the definition of “a member of a profession which ordinarily gives legal
advice”. A difficulty would also arise where a document contained both legal
and non-legal advice.
on the link to read the Supreme Court press statement
following the ruling: http://www.supremecourt.gov.uk/decided-cases/docs/UKSC_2010_0215_PressSummary.pdf
ruling only gives protection to communications in relation to legal advice
between a qualified lawyer and their client from being disclosed to third
parties and not to other professionals. However, in litigation where
communications come into existence for “the dominant purpose of prosecuting or
defending actual or pending litigation” then other professionals' legal advice
is likely to be privileged.
by Amy Rogers, Associate