No legal advice privilege for non-lawyers

I like to bang on about employment law provision by non-lawyers, and the case of Howes v. Hinckley & Bosworth Borough Council [2008] UKEAT brings up a problem that will no doubt be raised again as the range of providers grows.

In a nutshell, unless your legal advice is coming from a qualified and practising barrister or solicitor, it is not subject to legal advice privilege. It can be subject to litigation privilege. The difference is that litigation privilege only attaches to advice given in contemplation of litigation. In this case, advice on how to respond to a grievance was held not to be contemplation of litigation. Hinckley & Bosworth were lucky here – their employment consultant happened to be a solicitor and still had a practising certificate. He could easily not have done, and it would seem the advice would have been discloseable.

Hickley & Bosworth’s rather nice motto ‘Post Proelia Concordia’ – After the battle, harmony – must reflect the resultant atmosphere in their legal department.

Any ideas some might have that this is an insuperable block to new-style providers are probably ill-founded – given that the model of regulation will be along the lines of a qualified lawyer having supervision of legal services, I imagine this will likely be treated as the same as a firm of solicitors.

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