Does legal advice privilege extend beyond the traditional legal professions of solicitor, barrister and chartered legal executive (and their foreign equivalents)?
Legal advice privilege serves to provide confidentiality in respect of advices given by legal professionals (such as solicitors or barristers) to their clients resulting in the client not being obliged to reveal that advice to a Court subsequently.
The Supreme Court in R (on the Application of Prudential plc) –v- Special Commissioner of Income Tax decided that it does not extend beyond these professions.
In that case, Prudential sought to claim legal advice privilege in respect of legal advice provided by accountants in connection with a tax avoidance scheme. Giving the leading judgment, Lord Neuberger acknowledged that there was a “strong case in logic” for the expansion of legal advice privilege to cover a wider field of professional advisors, but held that it was preferable in the interests of certainty for the principle to retain its traditional boundaries, and that any expansion of the principle should be a matter for Parliament rather than the courts.
COMMENT :
This Decision confirms the principles adopted previously by the Courts. This principle is important and should be considered carefully by businesses and employers particularly where they choose to seek legal advice, for instance, from HR companies, to assist them in dealing with the resolution of employment law disputes within the workplace. Will the advices given by such companies be privileged or will the employer be obliged subsequently to reveal those advices to the Employment Appeals Tribunal?