By Clare Hughes-Williams & Sophie Ruffles
|
Published 24 September 2026
The Solicitors Regulation Authority (SRA) does not have the right to require the production of privileged documents from firms. This is the judgment of Mr Justice Butcher sitting in the High Court following the hearing in the case of Carter Ruck and Mr Amersi v SRA.
The SRA has been investigating Carter Ruck since 2023 in connection with its alleged conduct during the course of its retainer for their client, Mr Mohamed Amersi. During the investigation the SRA served three separate s.44B Notices seeking the production of documents which were subject to legal professional privilege (LPP). Carter Ruck and Mr Amersi objected to the Notices and issued Part 8 proceedings in which they sought a declaration that the SRA is not entitled to require solicitors to produce material which is subject to LPP.
The SRA relied on a number of arguments in defence of its position which was, in essence, that it needs to have the power to compel disclosure of documents. It argued that its right to insist upon disclosure was a matter of public policy and was necessary to enable it to uphold the proper administration of justice. It stated that such disclosure was not an infringement of LPP, that case law provided a legislative override of the obligation on law firms to protect LPP and that its power to call for disclosure in an investigative context was the same as in the case of an SRA intervention. The SRA also tried to distinguish the position by arguing that any documents disclosed to its investigators would only be used for the purposes of its investigation.
Butcher J rejected the SRA's arguments. The Court considered the fact that when an amendment to the Solicitors Act 1974, which specifically referred to the overriding of LPP, had been debated by Parliament in 2007, it had been noted that the Law Society had not made a case to override LPP and the amendment had accordingly been abandoned.
Butcher J distinguished the position in which a complaint is made by a client of the firm and found that, in this situation, there would be an implied waiver of privilege. In the case of a complaint by a non-client, however, he considered that there should be sufficient material available to allow the SRA to investigate without the need to infringe LPP by requiring the production of privileged documents.
There are, of course, exceptions to the rule that this judgment establishes, for example the iniquity exception may apply in cases involving dishonest conduct and clients may consent to the disclosure of their files if they are approached with a request to do so. Firms will have to consider the position carefully if they are asked for documents.
The SRA intends to appeal the decision but, in the meantime, if firms have already disclosed LPP documents to the SRA pursuant to historic requests, they may wish to ask that they are returned.
