Overview: Civil Procedure

Abstract

The Supreme Court decided six Civil Procedure cases in the 2012−2013 legal year. The Supreme Court in R (Prudential plc and another) v Special Commissioner of Income Tax1 confirmed that common law legal advice privilege is confined to advice given by lawyers, as distinct from other professionals. The appellants could not therefore refuse to disclose expert tax advice they had received from their accountants to the Inland Revenue. LordNeuberger, giving themainmajority decision, refused to extend privilege for three reasons: it would introduce uncertainty into the law; any change, and its proper ambit, was properly for Parliament; and the lack of forthcoming legislation, despite Parliamentary activity, suggested Parliament had chosen not to extend legal advice privilege to accountants giving tax advice. Lords Sumption and Clarke dissented: neither regarded Parliamentary inactivity nor potential uncertainty as sufficiently weighty to undermine what they saw as a client's functional right to privilege in relation to advice from any professional legal adviser. The Supreme Court considered injunctions in two cases. The first, concerning freezing injunctions, was Financial Services Authority v Sinaloa Gold plc (Barclays Bank plc intervening).2 The Court unanimously held that the Financial Services Authority (FSA) should not be required to give a cross-undertaking in damages in respect of third party losses caused by a freezing injunction. The FSA was therefore able to continue its injunction freezing the defendant's assets in six bank accounts at Barclays Bank, without being required to give an undertaking in respect of losses caused to Barclays. Lord Mance, giving the judgment of the Court, confirmed that there is no general rule that a public authority acting pursuant to a public duty should be required to give a cross-undertaking; nor were there particular circumstances requiring such an undertaking on the facts of this case.