The Legal Services Board (LSB) is to intervene in the high-profile Supreme Court case on whether the right to claim legal professional privilege (LPP) should extend beyond the clients of solicitors and barristers.
It will also call on the court to encourage legislation “promptly” that provides regulators with clearer guidance on LPP.
The long-running case – Prudential PLC and Prudential (Gibraltar) Limited v Special Commissioner of Income Tax and Philip Pandolfo (HM Inspector of Taxes) – centres on whether LPP should extend to tax law advice provided by accountants.
The Court of Appeal ruled in October 2010 that LPP is only applicable to solicitors and barristers. The LSB may seek to join the Law Society, Bar Standards Board and Institute of Chartered Accountants in England and Wales (ICAEW) by intervening in the Supreme Court.
The board’s concern is that the courts have traditionally held LPP as a common law right, only applicable to solicitors and barristers, yet section 190 of the Legal Service Act grants it to any authorised person providing the main reserved legal services.
The problem is a live one since two accountancy bodies – the Association of Chartered Certified Accountants and the Institute of Chartered Accountants in Scotland – are already approved regulators for the grant of probate rights (although neither has yet to activate their powers), while the ICAEW is poised to apply for probate authorisation in 2012 and in time may seek to become a licensing authority for alternative business structures.
Depending on how the Supreme Court decides, the LSB could find itself at odds with the ruling and open to challenge when exercising several of its statutory duties, including whether a particular legal activity should be reserved or removed from reservation.
In a paper to a recent board meeting, the LSB said the Supreme Court must ensure “an equitable and transparent approach to the granting of privilege”.
The LSB claimed that clarity can be achieved either through judicial guidance or through Parliament (which was the Court of Appeal’s suggestion).
It said the ideal outcome would include the court ruling that privilege could be granted to any authorised person – even if not a solicitor or barrister – for a reserved legal activity so long as their regulator addresses LPP issues within its regime.
The LSB also hoped the court will “provide clear encouragement to Parliament to address this issue promptly through legislation”.