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22-05-2013

The Supreme Court recently ruled that Legal Professional Privilege (LPP) should only extend to communications between a lawyer and their client (see Prudential PLC and Prudential (Gibraltar) Ltd v Special Commissioner of Income Tax and Philip Pandolfo (HM Inspector of Taxes). LPP means that emails, letters and documents between solicitors and clients containing legal advice need not be disclosed during the course of any litigation.

Prudential asked for legal advice on tax matters to be protected by LPP even though it had been delivered by accountants. HM Revenue & Customs (HMRC) had demanded the disclosure of documents related to a tax avoidance scheme promoted by PwC. An earlier ruling had already established that HMRC could not compel the disclosure of documents that were protected by LPP.

Prudential argued that the documents sought by HMRC related to legal advice on tax matters from accountants PwC. They argued that these documents were protected by LPP. The Court of Appeal rejected Prudential's argument and decided in that LPP could not be extended to accountants. The Supreme Court agreed. It did not matter that PwC had provided legal advice and that they were qualified to do so. They were not solicitors or barristers.

The decision is an important one. Often employers will quite rightly seek advice before dismissing an employee. If that advice is provided by a solicitor then it will be privileged and will not be disclosable in any subsequent employment tribunal proceedings. If however the advice is provided by another professional e.g. an HR Consultant, then the advice will not be covered by LPP. This may cause difficulties for employers where employees then seek to rely on communications between HR Consultants and employers to try and show that a dismissal procedure was unfair or that a decision was a foregone conclusion. Sometimes an HR Consultant will even be involved in the actual disciplinary hearing and emails disclosing the employer's tactics or aims will have passed back and forth between the employer and the consultant. These can be damaging in terms of defending any subsequent claims.

Sarah Rushton

Sarah Rushton is an employment partner at Moon Beever.

This is intended for general information only and should not be considered as giving advice in relation to any individual case nor be taken as applying to any particular case. No liability is accepted for any such use of the information. 

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