International Construction Law Review
UNITED KINGDOM -LEGAL PROFESSIONAL PRIVILEGE
TONY DYMOND AND MICHAEL MENDELBLAT1
Herbert Smith Freehills LLP
UNITED KINGDOM -LEGAL PROFESSIONAL PRIVILEGE
In our report at [2012] IICL 365 we wrote about the case of Walter Lilly & Company Ltd v. Mackay (No 2)
2 in relation to the issue of legal professional privilege. In that case, Mr Justice Akenhead in the Technology & Construction Court decided that communications between an employer under a building contract and his claims consultants were not covered by legal advice privilege as the claims consultants were not qualified lawyers. In this context, this term refers to a solicitor or barrister or an appropriately qualified foreign lawyer but its meaning does not extend beyond the legal profession. We referred in our report to the case of R (On the application of Prudential plc) v. Special Commissioner of Income Tax
3 which was then pending before the UK Supreme Court. This case concerns advice from accountants on tax law in which privilege was claimed. The court in Walter Lilly had regarded the Prudential case as being on all fours with Walter Lilly.
The Supreme Court delivered its judgment on 23 January 2013. It dismissed the appeal by a majority of five to two. It held that legal advice privilege at common law was confined to confidential legal advice provided by qualified lawyers. Any extension beyond the current scope should be a matter for Parliament.
The Court noted Prudential’s argument that the function of the request for advice rather than the nature of the adviser should be the determining factor. This approach was rejected. In the absence of statutory intervention, legal advice privilege at common law was restricted to advice and communications between a qualified lawyer and client. The Court noted that in practice legal advice may be given by persons who are not lawyers (and this may well have been the case in Walter Lilly) but it decided that any extension of the privilege was a matter for Parliament, not the Court.
The Court drew attention to the uncertainty that would result from an extension of the privilege that was proposed by the appellant, both in
1 Tony Dymond is a partner and Michael Mendelblat is a professional support lawyer at Herbert Smith Freehills LLP.
2 [2012] EWHC 1773 (TCC).
3 [2013] UKSC 1.
The International Construction Law Review [2013
366