Archive for July, 2013

Kept under wraps?

A party involved in civil litigation in England and Wales is required to disclose to the courts and to other parties in the case the documents which are or have been within its control and upon which it relies, which adversely affect its own case, or the case of another party and/or which support another party’s case.

A party can withhold from inspection by the courts and other parties to the litigation specified documents including where disclosure would damage the public interest.  Further, legal advice privilege applies to all communications passing between a client and its lawyers in connection with the provision of legal advice.

The question which came before the Supreme Court earlier this year was whether a party is entitled to refuse disclosure on the groound that documents related to legal advice given not by its lawyers but by its accountants.  The case, R (on the application pf Prudential plc and another) v Special Commissioner of Income Tax and another [2013] UKSC 1, concerned a statutory notice from an inspector of taxes to Prudential plc, to produce documents in connection with its tax affairs.  The legal advice had been given to the company by its accountants in relation to a tax avoidance scheme.  Both the court at first instance and the Court of Appeal had stated that, although the disputed documents would have attracted legal advice privilege if the advice in question had been sought from and provided by the company’s lawyers, no such privilege attached to the advice if provided by a person not a qualified lawyer.  The company appealed.  The Supreme Court dismissed the appeal by a majority and refused to extend legal advice privilege to advice given other than by lawyers even if the advice was legal advice.

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