Article Summary
- The High Court has ruled that a section 44B notice cannot require production of a client’s privileged material unless the client waives privilege.
- The SRA has been granted a leapfrog certificate to seek permission to appeal from the High Court directly to the Supreme Court.
- The SRA’s guidance now reflects the ruling, which remains subject to appeal.
- A solicitor under investigation may be unable to disclose or rely on a client’s privileged material in responding to the SRA unless the client waives that privilege.
On 21st September 2026, Mr Justice Butcher decided in Carter-Ruck Solicitors & Anor v Solicitors Regulation Authority [2026] EWHC 2416 (KB) that the Solicitors Regulation Authority’s (SRA’s) power under section 44B of the Solicitors Act 1974 to demand documents (where the statutory necessity and investigation conditions are met) during an investigation does not extend to a client’s privileged material unless the client waives privilege. According to the Law Society Gazette, the SRA had used this power for many years, without challenge, to obtain such material.
What Did The High Court Decide In Carter-Ruck?
The High Court decided that a notice under section 44B of the Solicitors Act 1974 cannot require regulated persons to produce documents or information subject to their clients’ legal professional privilege, if the client does not waive that privilege.
Since 8 September 2023, the SRA has been investigating the First Claimant, Carter-Ruck, a well-known law firm specialising in defamation, privacy, and other areas of media law, as well as one of its partners. The investigation focuses on Carter-Ruck’s conduct while acting for the Second Claimant, Mr Amersi, in bringing or threatening data protection and defamation claims in 2021/22. Carter-Ruck and the partner concerned, and Mr Amersi, although he is not the target of the SRA’s investigation, deny any wrongdoing, including any suggestion that they sought to mislead the court.
After the SRA issued production notices for Mr Amersi’s client files, Carter-Ruck sought a High Court declaration that section 44B did not entitle the SRA to legally privileged material.
Paragraph 9 (within the Factual Setting) of the judgment states:
“The Claimants say that their concerns do not rest on an abstract point of principle. They say that real problems have arisen since the SRA embarked on a ‘campaign’ to investigate so-called ‘SLAPPs’ (Strategic Lawsuits against Public Participation). They say that the SRA has shown a preparedness to investigate allegations of SLAPPs uncritically and without due regard to the risk that complaints are being weaponised by media defendants to deflect genuine legal claims; that its investigation officers are willing to advance speculative concerns about potential dishonesty by senior solicitors; and that it is increasingly seeking the production of privileged materials even while the litigation which has given rise to the complaint, or related litigation, is ongoing.”
Mr Justice Butcher applied the principle that legal professional privilege, as a fundamental right, can be overridden only by express words or necessary implication. Section 44B contains no express override, and amendment 149B, which would expressly have allowed the Law Society, acting through the SRA, to require production notwithstanding clients’ LPP, was withdrawn during the passage of the Legal Services Act 2007, and was not replaced by any equivalent enacted provision. Mr Justice Butcher concluded at paragraph 155:
“At best, from the SRA’s point of view, its terms might be said to be equivocal. That is not enough to override the fundamental right of LPP. It is not ‘compellingly clear’ that there is an override of LPP implied into s. 44B. The SRA has not surmounted the ‘high threshold’ for a necessary implication. There is no authority which binds this court to reach the conclusion that there is such an implication. But this court is bound to find that there is no ‘non-infringement’ or permissible infringement exception to LPP in the case of documents required by a legal regulator.”
Whether the SRA should have the power was, Mr Justice Butcher said, “a matter for Parliament.”
Why Is The SRA Appealing?
The SRA is appealing because it says privileged material is often vital to its investigations. In its statement on the ruling, SRA Executive Director – Investigations, Enforcement and Litigation, Jonathan Peddie, said: “Our ability to get to the truth of many matters may be compromised if we can no longer access information protected by legal professional privilege.”
The leapfrog certificate granted to the SRA, means the permission hearing can go straight to the Supreme Court, and the Law Gazette reports that no hearing date has been listed as yet. Until the appeal is decided, Mr Justice Butcher’s ruling stands. The SRA’s guidance on how it gathers evidence now states that, following the High Court’s decision in Carter-Ruck, it cannot compel production under section 44B of the Solicitors Act 1974, of material subject to a client’s legal professional privilege where that client does not consent. The SRA states that the decision is subject to an ongoing appeal.
How Should Firms Answer A Section 44B Notice?
Firms answering a section 44B notice remain subject to the duty to cooperate, and the judgment records that the lawyer has a duty to claim privilege on the client’s behalf where it is arguable that privilege applies. As the judgment states, “LPP can be waived by the client, whose privilege it is.”
It is important to note the limits of the High Court’s decision. For example, privilege does not cover communications made to obtain advice for the purpose of fraud or other iniquity, and where clients complain about their own solicitor, the judgment says there is a strong case for implied waiver. The SRA can still require material that is confidential (the material must still fall within a valid section 44B notice, which may be issued only where the statutory necessity and investigative-purpose conditions are satisfied) without being privileged. The judge said he did not question the result of an earlier decision on documents obtained on an SRA intervention.
For individuals, paragraphs 7.3 and 7.4 of the SRA Code of Conduct for Solicitors, RELs, RFLs and RSLs require solicitors to cooperate with the SRA and respond promptly with full and accurate explanations, information and documents.
Final Words
The Carter-Ruck ruling provides a basis for firms to resist a section 44B notice insofar as it requires the production of material subject to a client’s unwaived legal professional privilege. The SRA has applied for permission to appeal to the Supreme Court, but unless and until the High Court’s decision is stayed or overturned, section 44B does not permit the SRA to compel production of a client’s unwaived LPP material.
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