Supreme Court rejects unparalled expansion of legal advice privilege

31/01/13

A seven member panel of the Supreme Court today dismissed (5-2) an appeal which had argued that legal advice privilege should extend to advice given by accountants.

A Brick Court team of Sir Sydney Kentridge QC, Tom Adam QC and Tim Johnston, instructed by Herbert Smith Freehills, appeared on behalf of the Law Society (as interveners) before the Supreme Court.

The Court considered whether the fundamental common law right to receive legal advice in circumstances of absolute confidence should apply to legal advice received from accountants about tax (or to legal advice from any other suitably qualified professional about an area within their expertise). If accepted, this argument would have led to a revolution in the scope of legal advice privilege. Sir Sydney outlined a comprehensive survey of the comparative position in common law jurisdictions worldwide, demonstrating that the position contended for was without parallel absent legislation, and argued both that such a dramatic change should be left to Parliament and that the appellant had failed to demonstrate any adequate reason for the change. These arguments were accepted by the majority.

The case was also notable on a personal level, its opening day coinciding with Sir Sydney's 90th birthday. Before the case began Lord Neuberger, the President of the Supreme Court noted the occasion and commented on the inspiration which Sir Sydney has been to many in the legal profession. Sir Sydney, who first came to prominence in his native South Africa, has appeared numerous times in England's highest court. This was his second intervention on behalf of the Law Society at the highest appellate level, having previously appeared (again with Tom Adam) in the House of Lords in Three Rivers No 6 [2005] 1 AC 610.

The judgment is here.

The Supreme Court YouTube summary is here.