Julian Copeman & Heather Gething consider the application of privilege in light of the Prudential decision and the impact of the Legal Services Act
The disclosure of documents in English litigation is an important tool which allows the court to do justice between the parties with “all the cards on the table”. It therefore serves the general public policy that cases should be decided by reference to all available evidence. Similarly, in the tax context, the disclosure of documents to HM Revenue & Customs (HMRC) enables a fair assessment of the taxpayer’s liability to tax based on a review of all of the relevant evidence.
However, the requirement to disclose relevant documents in litigation or to public authorities is limited by Legal Professional Privilege (LPP), which has long been established in the common law and, more recently, as a fundamental human right protected by the right to privacy under Art 8 of the European Convention on Human Rights. LPP is seen as a necessary corollary of the right of any person
