Julian Copeman investigates the impact of the Prudential case on legal advice privilege
On 23 January 2013 in R (on the application of Prudential plc) v Special Commissioner of Income Tax [2013] UKSC 1 the Supreme Court confirmed by a majority of five to two that legal advice privilege (LAP) cannot be claimed in respect of confidential communications between accountants and their clients for the purpose of requesting or providing legal advice, but can be claimed only where such communications are between qualified solicitors, barristers or foreign lawyers (including in-house lawyers) and their clients.
Background
The case arose when HMRC gave formal notice to Prudential seeking production of documents relating to a tax avoidance scheme it had entered into. Prudential judicially reviewed the notices, arguing that they unlawfully required Prudential to disclose documents that were subject to LAP. In particular, Prudential asserted that documents by which it had sought or received legal advice on tax matters from its accountants were covered by LAP.
Prudential argued that LAP should be available for advice
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