David Smyth and Warren Ganesh, of Smyth & Co in association with Reynolds Porter Chamberlain LLP, summarise the recent UK Supreme Court ruling on legal advice privilege and some key points for lawyers, in-house lawyers and other professional advisers.
![]() In Prudential Plc & Anor v Special Commissioner of Income Tax & Anor (the Prudential case) the UK Supreme Court emphatically affirmed the underlying existence of, and rationale for, common law legal advice privilege between a client and a qualified lawyer (lawyer client privilege.) By a majority of five to two judges, the Supreme Court rejected an attempt to extend lawyer client privilege to other professional advisers who give “legal advice.” In doing so, the majority of the judges were following established common law precedent and exercising prudence based on policy reasons. The Prudential case gives cause for all lawyers and their clients to reflect on the nature of lawyer client privilege and the parameters of what is a fundamental human right; namely, the right to obtain confidential legal advice from a qualified lawyer. The judgment Persuasive force |
![]() On a practical note… Clients • If clients legitimately seek to cloak their confidential communications with lawyer client privilege then the communications must be with or on behalf of a qualified lawyer for the purpose of giving or receiving legal advice. • Clients who may obtain “legal advice” on myriad issues from professional advisers, other than qualified lawyers, need to be aware that communications with such advisers are not covered at common law by lawyer client privilege according to the UK’s highest court. • Depending on the jurisdiction, there may be a limited form of statutory protection conferred on communications with the likes of patent agents, trade mark agents, licensed conveyancers and tax advisers. • Where lawyer client privilege does not apply, consideration should be given to whether litigation privilege might. In-house lawyers Qualified lawyers Postscript: post-Prudential david.smyth@rpc.com.hk To read the ASIAN-MENA COUNSEL article Click Here (Note, if you are using an iPhone or iPad you can also download this article directly to your iBooks after it opens in Google Docs). |
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