UK Supreme Court holds that legal professional privilege does not extend to communications between a client and its accountants.
The facts of the case are that HMRC (the UK tax authorities) had served a notice on Prudential PLC requiring that it disclose communications with PriceWaterhouseCoopers regarding a tax avoidance scheme promoted by PWC. Prudential resisted on the grounds that such communications were the subject of legal professional privilege.
Legal professional privilege is relevant where a party is otherwise subject to a legal obligation to disclose documentation such as in litigation or investigations by tax or competition authorities.
Where legal professional privilege attaches to a communication between a legal advisor and a client, the client is entitled to object to any third party seeing the communication for any purpose unless the client has agreed or waived its right. Legal professional privilege covers both legal advice generally (legal advice privilege) and communications in relation to litigation (litigation privilege). This decision concerned legal advice privilege.
By a majority the Supreme Court held that legal advice privilege does not extend to communications with accountants even though the same advice, if given by legal professionals would have privileged.
Unless and until the UK parliament makes changes to the law legal advice privilege will continue to only apply to communications between clients and lawyers (including non UK lawyers regulated in another jurisdiction) and patent agents.
Comment
Clients are recommended to be alert to the lack of privilege attaching to any communications with accountants or other nonlegal professionals.
It should be noted that where it arises legal advice privilege under English law is a right of the client and not a right of the professional. Any exercise of the right has to be in the name of the client and it follows that there should be certainty as to who the client is.
R (on the application of Prudential plc and another) (Appellants) v Special Commissioner of Income Tax and another (Respondents) [2013] UKSC 1
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