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It pays to be privileged

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29 October 2010 / Mike Willis
Issue: 7439 / Categories: Features , Profession
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Mike Willis considers whether lawyer-confined privilege is prudential

In the recent case of R (on the application of Prudential Plc) v Special Commissioner of Income Tax [2010] EWCA Civ 1094, [2010] All ER (D) 132 (Oct), the applicant taxpayers challenged Revenue notices requiring disclosure of certain documents containing tax-related legal and regulatory advice on grounds they are privileged, notwithstanding the advice came from accountants, not lawyers.

They argued there is no functional difference between a lawyer or an accountant giving such advice, because both are subject to professional controls and ethical duties, and it should not matter whether it comes from a law firm or some other professional provider. The Court of Appeal has rejected their case, with some principled explanation for why the doctrine always has been, and arguably should still be, applied exclusively to lawyers’ advice; but more dominantly because they were bound by existing case law so that, if the rules of privilege are to be changed, it has to be done by Parliament.

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