High Court rules that the SRA cannot compel production of legally privileged documents when exercising its regulatory function

The High Court has confirmed that the Solicitors Regulation Authority (SRA) cannot use its statutory powers under s.44B of the Solicitors Act 1974 (“s.44B”) to require solicitors to hand over documents protected by clients' legal professional privilege (LPP), if the client does not agree to waive its privilege in those documents. The decision in Carter-Ruck Solicitors v Solicitors Regulation Authority [2026] EWHC 2416 (KB) overturns the accepted practice of the SRA when issuing production notices against a solicitor or law firm. 

Background

The SRA had been investigating Carter-Ruck’s conduct while acting for a client in bringing or threatening data protection and defamation claims. The SRA issued three production notices under s.44B requiring Carter-Ruck to provide them with documents from the client's files, including documentation subject to LPP. Carter-Ruck’s client had concerns about his confidential/privileged documents being produced to the SRA but indicated that he would assist if the SRA gave assurances that his documents would not be shared with any third parties; no such agreement/assurance was given.

Whilst the SRA withdrew one of its three production notices, in October 2025 it required Carter-Ruck to comply with the two remaining production notices. Carter-Ruck issued proceedings seeking a declaration that the SRA was not entitled under s.44B to require the production of material subject to LPP.  

Carter-Ruck’s position was that s.44B does not give any power to the SRA to require the production of material subject to a client’s LPP if that client does not consent. Carter-Ruck said that in furtherance of a ‘campaign’ to investigate SLAPPS, the SRA had shown a preparedness to investigate allegations without always fully considering the risk that media defendants may be using complaints to avoid legitimate legal claims. In contrast, the SRA contended that s.44B did give it the power to require the production of documents subject to the client’s LPP and that both LPP and the regulation of the solicitors’ profession are underpinned by the same public policy of upholding the administration of justice. The SRA said that its power to override LPP is a necessary implication in s.44B, otherwise the statutory purpose would be vitiated. It said that it would face a particular challenge in conducting investigations where a complaint is raised by a non-client (especially where the interests of the solicitor and the client are aligned) if it did not have the power to compel the production of documents subject to LPP. 

The case was heard on an expedited basis by Mr Justice Butcher and raised what the judge described as "a single but important issue".

Issues before the Court

The Court considered the following two alternate bases on which the SRA’s case relied:

1. whether the terms of s.44B overrides the client’s LPP notwithstanding that it does not make any express provision in relation to LPP (the "statutory override" argument); or
    
2. whether, if there is no statutory override, handing privileged documents to a legal regulator for the purposes of an investigation is not an infringement of a client’s LPP (the "no infringement" argument).

Statutory override

The Court observed that s.44B is drafted in wide and general terms as to the documents/information which the SRA can require is produced and contains no express override of LPP. It also observed that LPP is recognised as a fundamental right to which the principle of legality applies. As such, a fundamental right will be considered as overridden only by express words or by necessary implication. A ‘necessary implication’ being one which necessarily follows from the express provisions of the statute construed in their context and by reference to their purpose. 

The SRA advanced several arguments to support a statutory override, all of which were rejected by the Court:

1. Shared policy purpose - The SRA argued that because regulating solicitors serves the same public interest as LPP, an override should be more readily inferred. The Court accepted the importance of regulation but held that this did not make it more likely that Parliament intended to override a discrete fundamental legal right.
    
2. Parallels with intervention powers - The SRA pointed to the fact that when it intervenes in a solicitor's practice under s.35 of the 1974 Act, it can access privileged documents. Since s.44B borrows the enforcement machinery of the intervention regime, the same result should follow. The Court disagreed, unlike in a law firm intervention, where the SRA must take over an entire practice (and so the necessary implication does arise in respect of LPP material), an investigation can still function even if privileged material is withheld.
    
3. Absence of an express privilege carve-out - The SRA noted that other legislation expressly protects LPP, for example the Legal Services Ombudsman's powers under s.147 of the Legal Services Act 2007 and proceedings before the Solicitors Disciplinary Tribunal under s.46(11) of the 1974 Act. The SRA argued that Parliament's failure to include a similar carve-out in s.44B was deliberate. The Court held this was at most a sensible or reasonable inference, not a necessary one.
    
4. The Barras principle - The SRA argued Parliament should be presumed to have enacted s.44B knowing that Parry-Jones v Law Society [1969] 1 Ch 1 had held that similar earlier legislation overrode privilege. The judge found this unhelpful; the wording was not identical, the reasoning in Parry-Jones had been criticised by the House of Lords, and Parliament would equally have known by 2007 that LPP was a fundamental right not overridden by general words.
    
5. Safeguards - The SRA pointed to practical safeguards(anonymisation, private hearings, restricted internal access) to prevent any documents subject to LPP and which may be obtained in an investigation from becoming public or being used otherwise than for the purposes of the investigation. They contended that these safeguards supported an implied override. The Court was unconvinced, stating that if Parliament had intended safeguards to accompany an override of LPP, it would have enacted them.
    
6. Stultification - The SRA argued that its investigative purpose would be stultified without access to privileged material, particularly in cases involving complaints by non-clients relating to SLAPPs. The Court held that in the majority of investigations the SRA can investigate perfectly well without overriding privilege. The fact that some proportion of a limited category of cases might be harder, or even impossible, to investigate constituted an impediment, not stultification. 

The Court also had regard to some parliamentary materials, specifically debates between Lord Kingsland and Lady Ashton surrounding the Legal Services Act 2007. The Court stated that it appeared that a proposal was made for a provision which would unequivocally have permitted the SRA to require the production of documents which were confidential or subject to LPP. The minister, however, said that the proposed amendment was not accepted by the government, because of “real sensitivities in relation to allowing a regulator to override professional privilege or have unfettered access to material of a confidential nature in the way proposed.” The judge found this demonstrated no clear intention to override LPP in s.44B and, if anything, pointed in the opposite direction. 

"No infringement"

The SRA's alternative argument; that handing privileged documents to a legal regulator is not an infringement of LPP, was also rejected by the Court. It was held that the Court of Appeal's decision in Sports Direct International plc v Financial Reporting Council [2021] Ch 457 bound the Court to reject that argument. In Sports Direct it was held that there is no principle that, where documents are handed over to a regulator, there is no, or only technical, infringement of any LPP. The Court found no basis for treating legal regulators differently from other regulators in this respect. 

Comment

This decision is extremely important; it reinforces the importance of LPP and the extent of the protection it affords. It also significantly curtails the SRA’s power under s.44B to compel solicitors / firms to produce privileged client documents, which it previously exercised to override LPP.  

It puts the SRA into the same position as other regulators such as the FCA (which has no power to compel the production of ‘protected items’, which include items subject to LPP, under s.413 of FSMA 2000).  In that regard, the decision is no surprise.  Since the decision in Parry-Jones in 1969, the courts have increasingly emphasised the fundamental importance of LPP.  Whilst a regulator of the legal profession itself may be seen to be in a particular position, this was not enough in and of itself to justify the clear chain of authority underlining how LPP can never be overridden without express and unambiguous statutory authority. 

While the decision will be welcomed by solicitors’ clients who wish to protect sensitive information, in practice there are likely to be many scenarios in which solicitors will want to seek their client’s consent to the production of privileged client documents to the SRA upon receipt of a s.44B notice, including where such documents would exonerate / assist in resolving conduct concerns raised by the SRA.  Difficulties will now arise where a client refuses to waive its LPP. 

The decision raises other questions:

Firstly, what happens in ongoing cases where LPP material has already been obtained by the SRA and indeed concluded cases where regulatory prosecutions have been successful on the basis of LPP material? 

• In terms of ongoing cases, the SRA have said that they “are taking immediate steps to manage its operational implications, including providing guidance to our staff regarding the handling of ongoing cases” but we await to hear what that means in practice.  Plainly, the SRA cannot continue to access any LPP material it holds unless the client has given consent.  But will all this material be returned or destroyed or held in escrow pending the appeal?  If the latter, what safeguards will there be?
   
• In terms of concluded cases, the courts may be reluctant to overturn a series of SDT decisions on this basis. However, if they are predicated on evidence which was unlawfully obtained by the SRA, challenges cannot be ruled out. That starting point is the material in question should not have been with the SRA or the SDT or in any judgment.

Secondly, the question arises as to how the SRA will be able to investigate allegations of lack of due diligence on the part of a solicitor?  This was a key area in respect of so-called SLAPP cases such as the case in question to which the judgment relates.  This decision creates a huge obstacle to the SRA’s ability to assess allegations of this nature without LPP material at its disposal. In wasted costs cases, where LPP material is also not usually available, the Court has to proceed on the basis that it gives the solicitor every benefit of the doubt.  The SRA may have to do the same in such due diligence cases, which is likely to mean these investigations cannot practicably continue.

Thirdly, the decision puts into focus the lack of any real regime to protect the provision of LPP material to the regulator.  For example, as noted in the judgment, presumably the power does not extend to the SRA obtaining such material when the solicitor is acting for a client against the SRA itself, but what are the parameters of this?  And what safeguards should there be when this very sensitive information is disclosed?  Typically, the SRA is not required to enter into a confidentiality club with only named officials or external lawyers able to review the material as would often be the case when confidential information is disclosed in court proceedings.  If the power were to be put on a statutory basis, one might expect a detailed protocol covering these matters.  None exists at present.

This decision is unlikely to be an end to the debate. The SRA has confirmed that they will appeal the decision, but, given the sound reasoning in Mr Justice Butcher’s judgment, it may be that legislative reform is needed if the statutory intention was to provide the wider powers the SRA claim they need to effectively regulate the legal profession. Mr Justice Butcher expressly observed that the question of whether the SRA should have the power it claimed it has is "ultimately, a matter for Parliament". 

For the time being, a solicitor or firm who receives s.44B request to produce documents that are subject to LPP should seek its client’s consent to make such disclosure where appropriate. If client consent is not forthcoming, a solicitor can reference this decision when responding to the SRA’s request for production of such documents. 

For further information, please email the authors or your usual CMS contact.

Zoe Burge and Dan Tench of CMS acted for Ashley Hurst in his successful appeal of the SDT’s first SLAPPs prosecution.