Court of Appeal: for Parliament, not courts, to extend legal professional privilege

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By Legal Futures

13 October 2010


Court of Appeal: fact that Parliament has not extended LPP is not a coincidence

The Court of Appeal has today unanimously confirmed that legal professional privilege (LPP) does not apply to any other professional except solicitors and barristers.

It follows a case in which the Law Society and Institute of Chartered Accountants in England and Wales intervened on opposite sides, and the Law Society has welcomed the ruling as giving certainty to solicitors and their clients.

In Prudential PLC and Prudential (Gibraltar) Limited v Special Commissioner of Income Tax and Philip Pandolfo (HM Inspector of Taxes), Prudential had sought to extend LPP to advice on tax law given by accountants.

Prudential had argued that taxpayers often approach accountants rather than lawyers for advice on tax liabilities, which involves a consideration of, and advice about, the relevant law. They had argued that a client’s communications should be protected from disclosure if the advice is given by an accountant in the same way as it would be if given by a solicitor.

The appeal court rejected that proposition. Though it noted that tax legislation does make express provision in relation to tax accountants and to tax advisers with a limited equivalent of privilege, the Court of Appeal emphasised that extending LPP communications to other professionals, such as accountants, was a matter for Parliament and not for the courts.

The court said Parliament had considered the matter several times over the past 40 years and “that failure to change the law in this respect is not an accident”.

Law Society President Linda Lee says: “The Court of Appeal has stressed the need for a clear and certain application of LPP and pointed out that the present rules, when applied to members of the legal profession acting in a professional capacity, achieve that.

“The concept of LPP has been and remains closely tied to the administration of justice. The first duty of a solicitor, like other lawyers, is to the court and the second is to the client. In this respect lawyers are unique among the professions.”

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