Carter Ruck v SRA: High Court Decision Means SRA Cannot Compel Production Of Privileged Documents

The SRA has said it intends to appeal the decision so this may not be the last word.

The High Court has held that the Solicitors Regulation Authority (SRA) does not have the power to require regulated persons to produce documents, for the purpose of an SRA regulatory investigation, which are subject to a client’s legal professional privilege (LPP), unless the client agrees to waive LPP: Carter-Ruck Solicitors v Solicitors Regulation Authority Limited [2026] EWHC 2416 (KB).

The judgment recognises that LPP is a fundamental right which will only be displaced by an express statutory override or by necessary implication. The court found that the relevant statutory provision – s.44B of the Solicitors Act 1974 – met neither test: the statutory provision says nothing about privilege and, while the SRA’s inability to compel the production of material subject to LPP may impede the statutory purpose of s.44B, it does not stultify its purpose.

This decision departs from the SRA’s previously stated position that it can compel the production of privileged material, and aligns the SRA’s powers with that of other regulators which do not consider themselves to have such an entitlement. 

The judgment raises important practical questions such as: (i) whether the SRA will be able to conduct effective investigations into reports made by third-party complainants, where the solicitor’s client has not waived LPP; (ii) how solicitors and firms can comply with their duty to report misconduct to the SRA where that would be impossible without breaching LPP; and (iii) whether the SRA is permitted to make use of privileged material which has already come into its possession.

The SRA has already stated an intention to seek to appeal the decision. If that fails, the impact on the SRA’s investigative powers will be so profound that it seems likely that the SRA or others will attempt to change the law by legislation.

Background

The case derives from the SRA’s investigation of Carter-Ruck, a law firm specialising in defamation, privacy and media law, and one of its partners. The investigation concerned Carter-Ruck’s conduct while acting for its client, Mohamed Amersi, in relation to data protection and defamation claims in 2021/2022.

The SRA issued three notices to Carter-Ruck under s.44B of the 1974 Act, requiring the production of documents from its client matter files for Mr Amersi. In accordance with the SRA’s published enforcement strategy, which rests on the SRA’s construction of s.44B and the application of the Court of Appeal’s 1969 Parry-Jones decision (below), these notices would conventionally have required material to be produced by Carter-Ruck which was subject to Mr Amersi’s LPP, despite objection from Mr Amersi.

Section 44B was first inserted into the 1974 Act by the Administration of Justice Act 1985 and subsequently replaced in its current, expanded form by the Legal Services Act 2007. It empowers the SRA to require regulated persons to provide specified documents as required for the SRA’s investigatory and enforcement functions.

This case concerned the issue of whether s.44B empowered the SRA to require the production of documents that are subject to LPP: the so-called "statutory override" of privilege. The SRA said that it did have that effect, and Carter-Ruck maintained that it did not.

Decision

The High Court (Butcher J) found in favour of Carter-Ruck, confirming that s.44B does not empower the SRA to compel the production of privileged documents.

The SRA sought to justify its position on two main grounds:

1. The express or implied effect of s.44B, in respect of which the SRA advanced seven points in support of its position; and
2. Alternatively, the "no infringement" argument that, as the documents are "only" being provided to the SRA, a legal regulator, for specific statutory purposes, and the SRA’s investigations are conducted confidentially, LPP is not infringed or is only ‘technically’ infringed.

i. Statutory construction

Common underlying legislative objective 

The court accepted the SRA’s premise that the regulation and investigation of solicitors, and the recognition of LPP, share a common underlying objective – the proper administration of justice and the maintenance of the rule of law.

However, the court disagreed with the SRA’s position that Parliament was more likely to have intended s.44B to override LPP since such an override would align with the ultimate policy objective underlying both s.44B and LPP. The court found that while LPP may, like s.44B, also facilitate the proper administration of justice, “it is now a very well-established privilege, with its own defined boundaries, and has been recognised as itself being a fundamental right.”

Accordingly, the court could not assume a priori that Parliament intended to override a fundamental right such as LPP in order to advance the proper administration of justice.

The intervention analogy

The SRA sought to establish an analogy with its intervention powers under s.35 and paragraph 9 of Part II of Schedule 1 to the 1974 Act. The SRA noted that, where it makes an intervention into a firm’s practice, the documents which may be produced to the SRA undoubtedly include documents subject to LPP. Accordingly, since s.44B confers, in almost exactly the same words, the power to produce the same type of documents as permitted under an intervention, the SRA argued that it would be inconsistent if s.44B were to be construed as not overriding LPP.

The court rejected this argument on two grounds:

• First, that the documents which may be required under s.44B are governed by the terms of that section itself, not by the SRA’s statutory intervention powers.
• Second, the court accepted that an override of LPP was a necessary implication in the case of a s.35 intervention, because that power cannot be carried out without access to all the firm’s files. The SRA must be able to look at all documents in order to conduct or carry on the business of the firm. However, the same basis for implication is absent under s.44B. The court appreciated that the inability to require documents subject to LPP may make some investigations more difficult or less effective, but it held that this constitutes an impediment to, not a stultification of, the statutory purpose of s.44B.

Inferences from other provisions of the statutory scheme

The SRA’s third argument drew on two provisions of the wider statutory scheme. 

First, it pointed to s.147 of the 2007 Act, which empowers the Legal Ombudsman to compel the production of documents required for an investigation. However, s.147(6) expressly provides that the Ombudsman cannot compel the production of documents that a party could not be compelled to produce in High Court proceedings. The SRA argued that the deliberate omission of any equivalent carve-out from s.44B must be taken to indicate that Parliament did intend that LPP could be overridden under s.44B. The court was unpersuaded, however. It noted that while the SRA’s position was a reasonable inference, it did not mean that privilege was overridden by necessary implication.

Second, and similarly, the SRA pointed to s.46(11) of the 1974 Act, which expressly provides that, in proceedings before the SDT, no person shall be compelled to produce any document which it could not be compelled to produce on a trial of the action. The SRA argued that Parliament’s choice to specify such a limitation in s.46 but not in s.44B also suggests that a different result was intended. The court rejected this argument for similar reasons to the argument under s.147.

Presumed knowledge of judicial decisions

The SRA also argued that prior to the enactment of the 1974 Act, there was authority under earlier and similar statutory provisions which indicated that the Law Society – which had the equivalent investigative powers at the time – did have powers to compel the production of documents which were subject to LPP, notably Parry-Jones v Law Society [1969] 1 Ch 1. The SRA argued that, in accordance with the judgment on statutory interpretation in Barras v Aberdeen Steam Trawling and Fishing Co Ltd [1933] AC 402, Parliament “is normally presumed to legislate in the knowledge of, and having regard to, relevant judicial decisions”. As s.44B had been enacted after the decision in Parry-Jones, the SRA’s position was that it should be construed on the basis that Parliament would have had Parry-Jones in mind.

The court rejected that argument on the basis that this earlier authority was addressing different statutory powers and that, when the 2007 Act was passed, there was more recent authority which criticised the reasoning in Parry-Jones.

Legislative history

The court noted that, when Parliament was in the process of carrying through s.44B to the 2007 Act from its legislative predecessor (the Administration of Justice Act 1985, introducing an amendment to the Solicitors Act 1974) the Law Society had instigated the introduction of an amendment, in the House of Lords, to provide an express statutory override of privilege for regulatory investigations. The Parliamentary Under-Secretary of State for Justice had spoken in opposition to this proposed amendment, and it was withdrawn before the 2007 Act was passed. 

Procedural safeguards 

The court afforded little weight to the SRA’s argument that the existence of procedural safeguards to confine and limit any infringement of LPP gave rise to a necessary implication that Parliament intended to override it. The court re-emphasised its overarching position that the absence of express provision indicated that the Parliament did not intend to override LPP. This point became similarly important in considering the SRA’s "no infringement" argument, below. 

Stultification of statutory purpose

The SRA’s final argument in relation to statutory construction was that excluding documents subject to LPP would stultify the statutory purpose of s.44B. The court observed that, for this to be a relevant consideration, that which is stultified must be ‘‘at least a major plank’’ of the statutory purpose (per Lady Hale in R (Black) v Justice Secretary [2018] AC 215).

The court was not persuaded that the SRA’s inability properly to investigate the types of cases that it had suggested, including complaints by non-clients, met the “major plank” threshold. It took the view that the SRA could still investigate many cases without relying on a statutory override of LPP, including “most cases of client complaints (where there is likely to be a waiver); cases of workplace bullying and harassment, and other cases which do not involve communications involving the client’s LPP; and cases involving the iniquity exception.” The court added that, in cases of a complaint by an opposing party, the communications between the parties will themselves be available and are likely, in many instances, to comprise the relevant material.

ii. No infringement

As noted above, the SRA argued that LPP is not infringed where material subject to LPP is handed over to a regulator for a specific investigatory purpose. The court rejected this argument, holding that it was bound by Sports Direct International plc v Financial Reporting Council [2020] EWCA Civ 177 (considered here), which established that there is no principle to suggest that where documents are handed over to a regulator, there is no (or only a technical) infringement of any LPP. 

The court added that there were no grounds to suggest that legal regulators occupy a position different from that of other regulators. It is the provision of privileged documents and/or information to the SRA which constitutes the infringement of the client’s right to privilege, regardless of what it is anticipated that the SRA will do with those materials.