Duncan Lewis

Family Law

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Supreme Court had warns of uncertainty if legal privileges were to be extended to non-lawyers.

Date: (1 February 2013)    |    

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Last week the apex court said that it was for the Parliament and not the courts to decide on whether legal advice privilege (LAP) should be extended to non-lawyers.

Four justices agreed with Lord Neuberger that extending the principle to accountants and other professionals would carry with it an unacceptable risk of uncertainty and loss of clarity in a sensitive area of law.

Lords Sumption and Clarke dissented, on the grounds that English courts had always taken a “functional approach” to LAP.

Giving the leading judgment in R (on the application of Prudential) v Special Commissioner of Income Tax [2013] UKSC 1, Lord Neuberger said three reasons had persuaded him that the issue was a matter for parliament.

Firstly, the consequences of allowing Prudential’s appeal was hard to assess and was likely to lead to what was currently a clear and well understood principle becoming an unclear principle, involving uncertainty.

Secondly, whether the issue of LAP was a policy matter for the parliament to decide in the wake of whether LAP should be extended to cases where legal advice was given from professional people who were not qualified lawyers.

Thirdly, parliament has enacted legislation relating to LAP, which, at the very least, suggests that it would be inappropriate for the court to extend the law on LAP as proposed by Prudential.

The president of the Supreme Court said that Lord Sumption’s solution, while “clear and principled in conceptual terms”, carried with it an “unacceptable risk of uncertainty and loss of clarity in a sensitive area of law”.

Lord Neuberger said if Lord Sumption’s new rule would mean professionals like town planners, engineers or pension advisers would qualify and it was not clear whether the new rule, would extend LAP to any profession which ‘ordinarily’ gave legal advice.

He added that, it could be necessary for a court to delve into the qualifications or standing, and maybe into the rules and disciplinary procedures, of a particular group of people to decide whether the group constitutes a profession for the purpose of LAP.

A court deciding such an issue would mean there was a room for uncertainty, expenditure and inconsistency. He said he was not impressed by Prudential’s reliance on the Legal Services Act. It merely acknowledges two facts that other professionals have been advising in legal matters and that lawyers were also working in firms with other professionals and vice versa. Only change in the 2007 Act was that lawyers could now go into partnership with people in other professions he added.

The president of the Supreme Court said rather than extending LAP beyond its present accepted boundaries, it should leave it to parliament to decide what, if anything, it wishes to do about LAP.

He dismissed Prudential’s appeal. Lords Hope, Walker, Mance and Reed agreed. Lords Sumption and Clarke dissented.