Non-lawyers

R (on the application of Prudential plc and another) v Special Commissioner of Income Tax and another [2013] UKSC 1, [2013] All ER (D) 146 (Jan); NLJ 1 February; TLR 5 February

In 2004, an international firm of chartered accountants (PwC) devised a marketed tax avoidance scheme (the scheme), which it disclosed to the Commissioners for Inland Revenue (HMRC). It implemented the scheme for the benefit of the group of companies of which the claimant companies formed part (the group). The inspector of taxes considered it necessary to look into the details of the transactions comprising the scheme, and served notices, pursuant to s20(B)(1) of the Taxes Management Act 1970, on the claimant companies, giving them the opportunity to make available specified classes of documents in relation to the transactions. The claimants disclosed many of the documents requested, but refused to disclose certain others (the disputed documents) on the ground that they were entitled to claim legal advice privilege (LAP) for those documents. In subsequent litigation, the issue arose as to whether LAP applied to the disputed documents. The lower courts held that, although the disputed documents would have attracted LAP if the advice in question had been sought from, and provided by, a member of the legal profession, no such privilege extended to advice, even if identical in nature, provided by a professional person who was not a qualified lawyer. The claimants appealed to the Supreme Court. The question for the court was whether LAP extended, or ought to be extended, so as to apply to legal advice given by someone other than a member of the legal profession and, if so, how far LAP thereby extended.