Scoping out legal advice privilege

05 February 2013

The Supreme Court has now given its judgment on the eagerly awaited appeal by Prudential regarding whether or not legal advice privilege should be extended to communications in connection with advice given by professional people who are not qualified lawyers. By a majority of 5:2 (Lord Clarke and Lord Sumption dissenting), the Supreme Court has declined to extend the long and well established principle.

Privilege, as a matter of Jersey (and English) law, typically falls into two sub categories: (1) legal advice privilege; and (2) litigation privilege. Communications subject to litigation privilege are outside the scope of this judgment summary, save to note that such communications are privileged only if litigation is in progress or contemplation (see Café de Lecq Limited v R A Rossborough (Insurance Brokers) Limited [2011] JLR 182). Communications subject to legal advice privilege ("LAP") on the other hand are broadly speaking privileged in all circumstances regardless of whether or not litigation is in progress or contemplation. The Prudential case concerned LAP.

For further information, please contact David Cadin.