One Step Forwards on Media, One Step Back on Substance

Last Wednesday, the UK Supreme Court split on the issue of whether legal advice privilege extended to legal advice provided by accountants. In other words, did the privilege attach because of the nature of the communication, rather than the status of the person communicating.

The Court split 5 to 2, holding that legal advice privilege remains the exclusive preserve of clients of the legal profession. It protects communications passing between a lawyer and his or her client, with the lawyer acting in a professional capacity in connection with the provision of legal advice.

The Prudential case involved the issue of whether the Prudential could refuse to withhold certain documents on the ground that the documents were covered by legal advice privilege, where the legal advice had been given by accountants in relation to a tax avoidance scheme.

Despite a vigorous dissent by Lord Sumption, the majority of the court held to the traditional view of legal advice privilege, reasoning that to loosen it would result in significant uncertainty. Were the privilege to be extended, that was more properly a job for parliament.

For readers of Slaw, the case was also significant because it was the first case to be profiled in the court’s YouTube channel. The Court has asked judges writing their reasons to summarize their position in 6 minute statements, delivered straight to camera, and available on YouTube. The content may be somewhat soporific, but the concept of asking judges in effect to draft an executive summary and to make it available for press and public is both novel and exciting. I hope our Supreme Court takes note.

Court on camera: judgment summaries on demand
21 January 2013

Summaries of the decisions of the UK’s highest court will be made available to view on demand from this week, in the Supreme Court’s latest initiative to help make its work as accessible as possible.

Video of the five-minute summary given by the lead Justice in each appeal as they deliver their judgment will now be posted on the popular video-sharing website YouTube shortly after delivery in court. The move follows the success of the Court’s live web streaming of proceedings provided in partnership with Sky News.

The judgments published this Wednesday morning – in the cases of R (on the application of Prudential plc) v Special Commissioner of Income Tax; Zakrzewski v The Regional Court in Lodz, Poland; and Lloyds TSB Foundation for Scotland v Lloyds Banking Group – will be uploaded to a dedicated Supreme Court YouTube channel on www.youtube.com/uksupremecourt by lunchtime on the same day. These films will join the back catalogue of 25 judgments from the last legal term (October – December 2012) made public today.

The brief summaries, written by the Justices themselves, have been delivered in court since the Supreme Court opened in 2009. These replaced the previous practice when the judges sat as judicial members of the House of Lords, where they delivered their decisions as speeches in special sittings of the House.

The Justices’ summaries aim to explain briefly the background to the appeal in hand, the decision the court has reached, and the reasons for that decision. They will now be available online for law students, professionals and anyone interested in the outcome of an appeal to watch at their convenience.

Lord Neuberger, President of the Supreme Court, said: “Demand for our live web stream of proceedings has far outstripped our expectations. Around 20,000 people watch each month. Making our judgment summaries available as a video archive seemed the obvious next step.

“We hope this new service will open up another window on our work and the reasoning behind our decisions, and broaden our audience.”

Due to the length of Supreme Court hearings and the additional technical resources needed to make these available online in a similar way, there are no immediate plans to archive entire appeal hearings, though demand for the new service will be closely monitored.

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