Bankim Thanki QC appeared for the Bar Council (intervening) in the matter of R (on the application of Prudential PLC) v HMRC, in which the Court of Appeal handed down judgment on 13 October [2010] EWCA Civ 1094. Giving the leading judgment in Court of Appeal, Lloyd LJ said that the Court was bound by authority to hold that “legal professional privilege does not apply, at common law, in relation to any professional other than a qualified lawyer: a solicitor or barrister, or an appropriately qualified foreign lawyer” [82]. He also considered that even if the Court were not so bound [83]:
“I would conclude that it is not open to the court to hold that LPP applies outside the legal profession, except as a result of relevant statutory provisions. It is of the essence of the rule that it should be clear and certain in its application, since it is not the subject of any ad hoc balancing exercise but is, to all intents and purposes, absolute. As applied to members of the legal professions, acting as such, it is sufficiently clear and certain. If it were to apply to members of other professions who give advice on points of law in the course of their professional activity, serious questions would arise as to its scope and application.”
Prudential and the ICAEW (intervening) had sought to extend legal advice privilege to communications with accountants for the purposes of advice on tax law (on appeal from the judgment of Charles J [2009] EWHC 2494 (Admin)).
