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R (on the application of Prudential plc & Anr) v Special Commissioner of Income Tax & Anr [2013] UKSC 1 - 23rd January 2013


The issue was whether legal advice privilege extends to legal advice given by professionals other than professional lawyers. The appellants submitted that it was entitled to refuse to comply with a notice under s.20, Taxes Management 1970 to disclose documents in connection with its tax affairs on the ground that the documents related to legal advice given by chartered accountants protected by legal advice privilege.

Appealed dismissed by a majority of five to two (Lord Clarke and Lord Sumption dissenting). Held; Legal advice privilege is confined to cases where legal advice is given by members of the legal profession. So long as it is limited to advice from members of the legal profession, the presumption is that it applies in connection with any communications in that context. Whether it should be extended to cases where legal advice is given from professional people who are not qualified lawyers raises questions of policy which should be left to Parliament. Morgan Grenfell [2002] UKHL 21 distinguished.

Lord Reed made some observations from the perspective of Scots law where the area of law has developed separately, broadly concluding that the general principle, its fundamental importance and the public policy considerations underlying it are common to both jurisdictions ([104]-[114]).

Lord Sumption, dissenting, took a functional approach to the issue: 'Once it is appreciated (i) that legal advice privilege is the client's privilege, (ii) that it depends on the public interest in promoting his access to legal advice on the basis of absolute confidence, and (iii) that it is not dependent on the status of the adviser, it must follow that there can be no principled reason for distinguishing between the advice of solicitors and barristers on the one hand and accountants on the other' (at [123]).