Supreme Court confirms that legal advice privilege does not apply to communications with non-lawyers


The Supreme Court this week handed down judgment in the case of R (on the application of Prudential plc and another) v Special Commissioner of Income Tax and another, confirming that legal advice privilege does not extend to legal advice given by non-lawyers, such as accountants.

The decision confirms the current understanding of the scope of legal advice privilege. Despite extensive submissions from the Bar Council and the Law Society, which both intervened in the proceedings, the Supreme Court concluded that there was no good reason in principle to distinguish between legal advice received from lawyers and nonlawyers in a world where, for example, advice on tax law is widely sought from accountants rather than lawyers. Nevertheless, the majority concluded that the need for certainty of the application of legal advice privilege, in particular, precluded them from extending the remit of legal advice privilege to communications with non-lawyers. Rather, it is for Parliament to determine whether, and to what extent, the privilege should be extended.

Summary -

This insight:

- Explains in brief the basis for litigation and legal advice privilege and contrasts the two;

- Sets out the relevant background to the Supreme Court’s decision;

- Provides a brief analysis of the decision itself; and

- Considers its implications.

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