Communication between counsel and client

Where legal professional privilege was attached to a communication between a legal adviser and a client, the client was entitled to object to any third party seeing the communication for any purpose, unless the client had agreed or waived its right; or a statute provided that the privilege could be overridden; or the document concerned was prepared for, or in connection with, a nefarious purpose, or one of a few miscellaneous exceptions applied.

Legal advice privilege was conferred in support of the client's right to consult a skilled professional adviser and not in support of a right to consult the members of any particular professional body

Where advice on tax law was sought from and given by an accountant it should be subject to the same legal advice privilege attached to legal advice given by a member of the legal profession

In modern conditions accountants had the expertise to advise on tax law and it was firms of accountants rather than firms of solicitors who gave such advice and represented clients in disputes with tax authorities on many aspects of their tax affairs

Legal advice privilege extended to advice given by members of a profession, which had as an ordinary part of its function the giving of skilled legal advice, however such members must be part of a properly regulated professional body

Appeal was allowed and case was remitted to the High Court to decide whether the material/documents requisitioned by the tax inspector would have been privileged if a solicitor or barrister had performed the functions that the accountants performed, and to quash the notices if it would have been.

If legal advice privilege was determined not by the profession to which the adviser belonged but by the function that he was performing, it would amount to changing the ambit of the privilege, and would also be a significant change because the privilege as generally understood had clearly defined limits

Courts were not best placed to assess how profound a change it would be if legal advice privilege was extended to tax advice given by chartered accountants, and for assessing whether there were good reasons of policy for making such a change and what protections, if any, were needed to ensure that the ambit of the privilege was kept within limits that were acceptable

If there were reasons of public policy for making such a change, the matter should be left to the Parliament

Appeal was dismissed accordingly. [Minority view]

Legal advice privilege should, as far as possible, be based upon a principle which was clear, certain and readily understood

Extending legal advice privilege to any case where legal advice was given by a person who was a member of a profession which ordinarily included the giving of legal advice, would create uncertainty in the scope of the privilege

Debate as to whether particular professional persons, in particular situations, would or would not fall within the scope of legal advice privilege, would detract from the certainty and clarity which presently existed in the said privilege

Appeal was dismissed accordingly.

Legal advice privilege had developed and been accepted on a general basis in respect of lawyers because their business was normally dealing with legal matters

In relation to tax or any other particular areas where legal advice was given professionally, specific considerations might exist which could on examination point away from a recognition of legal advice privilege, or away at least from its recognition on an unqualified basis

If legal advice privilege was to be extended to professions other than lawyers, it would not be on a general basis and a careful distinction would have to be drawn between privileged and non-privileged activities, something which was normally irrelevant in the case of lawyers

Distinction between privileged and non-privileged activities would not necessarily be easy to draw

Any recognition in respect of tax accountants of a privilege which traditionally is regarded as relevant only to legal advice given by lawyers in the course of their profession, or of any parallel privilege, should take place, if at all, in Parliament, and not in the courts

Appeal was dismissed accordingly.