required in the context of the litigation, which dispenses w/ a requirement of a formal control group in favor of what may be termed a “need to know” approach. R (on the application of Prudential plc and another) v. Special Commissioner of Income Tax  UKSC 1 Who counts as a lawyer for a legal professional privilege? Barrister / solicitors, it also extended to communications w/ people employed by firms of solicitors, e.g. LE. Nowadays, however, there are other groups who are in legal advice giving business who are not lawyers. One group, is pattern attorneys / agents, clients are granted privilege w/ them in Civil and Evidence Act. The HoL took the opportunity to state again the rule that legal professional privilege is a basic right, and that any statutory attempt to derogate from it must be made in express language or by necessary implication. Morgan Grenfell had devised and marketed a tax avoidance scheme, which depended on the validity of certain dax deductions claimed by the company and its clients. The validity of the deductions was the subject of a dispute between the company and the Inland Revenue. The scheme had been designed in reliance on legal advie given to the company by its solicitors and counsel. The inspector of taxes sought disclosure of the opinions given by the solicitor and counsel on which the validity of the scheme to be entitled to disclosure of any documents relevant to any tax liability of the taxpayer or the amount thereof. Morgan Grenfell objected to the disclosure on the ground that the documents were the subject of legal professional privilege.
Lord Hoffmann: Two of the principles relevant to construction are not in dispute. First, Legal Professional Privilege is a fundamental human right long established in the common law. It is a necessary corollary of the right of any person to obtain skilled advice about the law. Such advice cannot be effectively obtained unless the client is able to put all the facts before the advisor w/o fear that they may afterwards be disclosed and used to his prejudice. The case establishing this principle are collected in the speech of Lord Taylor in Derby Magistrate. It has been held by the ECHR to be part of the right of privacy guaranteed by art8 of the European Convention. Secondly, the courts will ordinarily construe general words in a statute, although literally capable of having some startling or unreasonable consequence, such as overriding fundamental human rights, as not having been intended to do so. An intention to override such rights must be expressly stated or appear by necessary implication. (ii) Communications with third parties for the purpose of actual or contemplated litigation Whether actual or contemplated litigation needs to be the solely, or proponderouly a purpose?
- Fall '15
- The Land, criminal law, Lawyer, Evidence law, Attorney-client privilege, Crown Proceedings Act 1947