Law Digest Summer 2013 Law Digest Summer 2013
www.nglawdigest.com www.nglawdigest.com lawyers as the wording of section 60(1)(a) of the 1977 Act, is similar to the wording of section 6 (1)(a) of the Nigeria Patent and Design Act 1990 (the “1990” Act) which provides thus: “A patent confers upon the patentee the right to preclude any other person from doing any of the following acts(a) where the patent has been granted in respect of a product, the act of making, importing, selling or using the product, or stocking it for the purpose of sale or use”, and this decision could be of persuasive precedent in the Nigerian courts when the meaning of “making” in section 6(1)(a) of the 1990 Act is under consideration.
Common Law Professional Conduct Practice & Procedures Privilege R (on the application of Prudential PLC and Prudential (Gibraltar) Ltd) v Special Commissioner of Income Tax and Philip Pandolfo (HM Inspector of Taxes) [2013] UKSC 1 Background facts The particular issue on this appeal is whether legal advice privilege (or legal professional privilege, as it is also sometimes called) (“LAP” or “LPP”) should attach to communications passing between chartered accountants and their client in connection with expert tax law advice given by the accountants to their client, in circumstances where there is no doubt that LAP would attach to those communications if the same advice was being given to the same client by a member of the legal profession. The case arose following the service of notices under the Taxes Management Act 1970 (“TMA”) by the Inspector of taxes on Prudential PLC and Prudential (Gibraltar) Ltd (together “Prudential”) requiring the disclosure of certain documents relating to a series of transactions (“the Transactions”) which implemented a tax avoidance scheme (“the scheme”) devised and
marketed by PricewaterhouseCoopers (“PwC”). The scheme gave rise to a substantial tax deduction in Prudential (Gibraltar) Ltd, a subsidiary company of Prudential plc, which could then be set off against the profits of that company, which profits were ordinarily chargeable to corporation tax in the UK. Prudential disclosed many of the documents initially requested pursuant to notices under section 20B(1) of TMA, but refused to disclose certain documents (“the disputed documents”) on the ground that Prudential was entitled to claim legal advice privilege in respect of them. Further notices under section 20(1) and (3) were issued, in respect of the disputed documents to Prudential and in turn, Prudential applied for judicial review challenging the validity of those notices on the ground that they sought disclosure of documents which related to the seeking (by Prudential) and the giving (by PwC) of legal advice in connection with the Transactions, which were therefore said to be excluded from the disclosure requirements of section 20 by virtue of LAP, in accordance with the decision of the House of Lords in R (Morgan Grenfell & Co Ltd) v Special Commissioner of Income Tax [2002] UKHL 21, [2003] 1 AC 563 (“Morgan Grenfell”) which established that the provisions of section 20 of TMA could not be invoked to force anyone to produce documents to which LAP attached. Section 20(1)(a) provided that an inspector of taxes “may by notice in writing require a person…to deliver to him such documents…as (in the inspector’s reasonable opinion) contain, or may contain, information relevant to … (i) any tax liability to which that person is or may be subject, or (ii) the amount of any such liability”. Section 20(3) extended this power to require “any other person” to “deliver …or…make available” such documents to an inspector. By virtue of section 20(7), an inspector needed the consent of the special or general commissioners before serving a notice under either subsection. The Judgement LAP/LPP applies to all communications passing between a client and its lawyers, acting in their professional capacity, in connection with the provision of legal advice, i.e. advice which “relates to the rights, liabilities, obligations or remedies of the client either under private law or under public law” (Three Rivers District Council v Governor and Company of the Bank of England (No 6) [2005]
1 AC 610 (“Three Rivers”) para 38, per Lord Scott). LPP attaches to a communication between a legal adviser and a client. The client is entitled to object to any third party seeing the communication for any purpose, unless (i) the client has agreed or waived its right, (ii) a statute provides that the privilege can be overridden, (iii) the document concerned was prepared for, or in connection with, a nefarious purpose, or (iv) one of a few miscellaneous exceptions applies (eg in a probate case where the validity of a will is contested).[para 17] LAP is a common law principle which exists: 1. to ensure “full and frank communication between attorneys and their clients”, which “promote[s] broader public interests in the observance of law and administration of justice” – Upjohn Co v United States (1981) 449 US 383, 389, quoted by Lord Scott in Three Rivers (No 6) at para 31; 2. solely for the benefit of the client. Lord Neuberger [paras 29 - 36] cites various authorities showing that the generally accepted view on the ambit of LAP is that it is confined to communications between a client and qualified lawyer. He further states that if he were to allow the appeal, the court would therefore be extending LAP beyond what are currently, and have for a long time been understood to be, its limits. Lord Neuberger concludes by saying, “I consider that we should not extend LAP to communications in connection with advice given by professional people other than lawyers, even where that advice is legal advice which that professional person is qualified to give”. It was felt that the extension of LAP to other professions was a policy issue best left to Parliament. In the UK there are statutory extensions of LAP to patent attorneys, to trade mark agents and to licensed conveyancers – see respectively section 280 of the Copyright, Designs and Patents Act 1988, section 87 of the Trade Mark Act 1994 (as amended by the Legal Services Act 2007), and section 33 of the Administration of Justice Act 1985. Of most interest was Lord Sumption who, in dissenting, stated that: “In my opinion the law is that legal professional privilege attaches to any communication between a client and his legal adviser which is made (i) for the purpose of enabling the adviser to give or the client to receive legal advice, (ii) in the course of a professional relationship, and (iii) in the exercise by 33