In January, the Supreme Court ruled in Prudential PLC v Special Commissioner of Income Tax [2013], that legal professional privilege should not be extended to legal advice given by accountants but should remain a privilege that is only afforded to solicitors and barristers.
Prudential PLC v Special Commissioner of Income Tax [2013]
The issue arose in Prudential PLC v Special Commissioner of Income Tax [2013] when HMRC requested that Prudential PLC hand over copies of legal advice which had been provided by their accountants regarding a tax avoidance scheme. Prudential claimed the documents were protected by legal advice privilege and, as such, HMRC was not entitled to inspect them. HMRC obtained authorisation from the Special Commissioner which required Prudential to disclose the disputed documents. Prudential challenged the decision by issuing an application for judicial review.
Judicial Review of Legal Professional Privilege
The Court initially rejected Prudential’s argument on the basis that established case law did not provide sufficient authority that the clients of accountants have a right to claim legal professional privilege, meaning their advice couldn’t be seen as confidential.
Prudential then argued in the Court of Appeal that legal professional privilege should be based on the type of advice given as opposed to the status of the advice-giver. An attempt was also made to distinguish the case from Wilden Pump Engineering Co v Fusfield [1985], in which it was held legal professional privilege was limited to lawyers, and did not extent to patent agents. The court felt bound by the decision in Wilden Pump, believing the application of legal professional privilege was not a matter to be decided in court; the court stated, ‘if it were to apply to members of other professions who give advice on points of law in the course of their professional activity, serious questions would be arise as to its scope and application.’
Supreme Court Confirms Legal Professional Privilege is Only For Lawyers
The Supreme Court decided that a ruling in favour of extending legal professional privilege to accountants would ‘lead to a clear and well understood principle becoming uncertain’. It further added that any extension of legal professional privilege should first have its consequences ‘considered through the legislative process, with its wide powers of inquiry and consultation.’
Conclusion
At present, legal professional privilege remains restricted to the legal industry, giving lawyers a distinct advantage over accountants when it comes to tax advice. Unlike accountants, lawyers can promise confidentiality of their advice.
Rollingsons has experienced lawyers who can assist you business law matters. For more information please contact James Crichton via e-mail jcrichton@rollingsons.co.uk or by telephone on 0207 611 4848.
