Legal Privilege for Non-Lawyers

The recent case of R (Prudential Plc and Another) v Special Commissioner of Income Tax and Another [2013] UKSC 1 has confirmed that the rules on confidential advisers’ disclosure do not apply to non-legal professionals – be that accountants, surveyors, agents, architects etc……

This case began as an application for judicial review by Prudential to quash notices received from HMRC requiring it to disclose legal advice received from PriceWaterhouseCoopers. Both the Court of Appeal and Supreme Court held that legal advice privilege could not extend to advice given by professionals who were not members of the legal profession.

In practice this means that any legal advice given by a non-legal professional may be disclosed to the other side as part of the litigation process.

This should not be confused with litigation privilege which attaches to communications with non-legal professionals where litigation is reasonably in prospect.

In its ruling the Supreme Court indicated that this was not a satisfactory position but noted that it was not a matter for the Court but for Parliament to address.

CONCLUSION

Although it is not practical to run every piece of advice from a non-legal professional through a lawyer, it may be advisable to do so if there is any chance that a matter may become litigious at a later date.

If you would like more information about this issue, please contact katie-ann.oleary@edwincoe.com.

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