Legal Advice Privilege

The Supreme Court has recently decided that legal advice privilege (in England and Wales) does not extend beyond the legal professions of Solicitor, Barrister and Chartered Legal Executive (and their foreign equivalents) in R (on the application of Prudential plc) v Special Commissioner of Income Tax.

Prudential obtained legal advice from their accountants in relation to a tax avoidance scheme and claimed legal advice privilege in this regard. The Court held that the principle of legal advice privilege should retain its traditional boundaries and therefore would not be available in this particular case. This is significant because it means that only legal advice given by solicitors, barristers and chartered legal executives to their clients will be protected by privilege where the subject matter of that advice is unconnected with litigation. Such protection is not afforded to legal advice coming from any other profession or between, for example, work colleagues not in these professions.

In other words, all communications (whether written or oral) between persons where:-

  1. one or other of them is not a Solicitor, Barrister or Chartered Legal Executive (for example two Managers at work or a Manager and an HR Manager (internal or external)); and
  2. legal proceedings are not pending or contemplated (thus attracting litigation privilege);

do not attract legal advice privilege and therefore, where relevant, would need to be disclosed to a Tribunal or County Court pursuant to a standard Order for disclosure.

Written by Edward Aston 11th March 2013

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