Updated: Tax advisers lose bid to extend legal privilege

The profession has lost in its bid to extend legal professional privilege (LPP) to tax advisers.

The Court of Appeal confirmed that LPP should only apply to lawyers – solicitors and barristers.

The court battle saw Prudential attempt to extend LPP for the advice it had received from tax lawyers – information to which the taxman was seeking access. During the hearing the ICAEW presented its argument to extend LPP to the judges.

Lord justice Lloyd said that previous case law had laid down LPP as applying to solicitors or barristers only, and even without such case law the decision to extend LPP would need to be made through statute to avoid uncertainty for clients as to LPP’s extension.

“As applied to members of the legal professions, acting as such, it is 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,” said lord justice Lloyd.

“To which accountants should it apply, given that “accountant” does not by itself denote membership of any particular professional body, or the obligation to comply with any, or any particular, professional obligations?

“To which other professional advisers would it apply? To what areas of the law would it apply as regards the advice of any adviser who is not a lawyer as such?

“These questions are serious and important, and would require a clear answer in order that the scope and application of the extended LPP should be known and understood.”

Read the appeal judgment here.

Further reading:

ICAEW: Legal privilege rules “unsustainable”

ICAEW prepared to lobby government for legal professional privilege