Solicitors Regulation Authority v Edward James Williams

Legal professional privilege is absolute once established, unless waived by the client. It does not require the court or tribunal to balance confidentiality against competing interests, including open justice or the public interest in disclosure. Communications made in the course of a conveyancing transaction may attract privilege even where they do not contain specific legal advice. A tribunal considering anonymity to protect privileged communications must apply the statutory anonymity power separately from provisions governing private hearings. It must not impose the higher thresholds of exceptional hardship or exceptional prejudice applicable to a private hearing. Where publication would identify privileged communications, anonymity may be necessary to preserve privilege.

The Solicitors Regulation Authority appealed under section 49(1) of the Solicitors Act 1974 against the Solicitors Disciplinary Tribunal’s refusal to anonymise former clients and property information in disciplinary proceedings against Edward Williams. The SDT had relied on open justice principles and Lu v SRA, and concluded that there was no exceptional hardship or prejudice justifying anonymity under Rule 35 of the Solicitors (Disciplinary Proceedings) Rules 2019.

The SRA argued that publication would disclose or permit identification of communications protected by legal professional privilege, and that the SDT had applied the wrong legal tests. The central issues were whether privilege required protection from publication and whether the SDT had correctly construed its anonymity power.

1. Appeal allowed. The SDT’s refusal to anonymise the clients and relevant property information was wrong in law. The High Court substituted an order prohibiting disclosure or publication of matters likely to identify the privileged communications.
2. Legal professional privilege is a fundamental and absolute right once it applies, unless waived by the client. It is not subject to a case-specific balancing exercise against open justice or another competing public interest. The SDT’s consideration of whether the clients had particular sensitivities, vulnerabilities or potential harm was therefore beside the point. The principle in R v Derby Magistrates’ Court ex parte B was directly applicable.
3. Communications between solicitor and client concerning the handling of a conveyancing transaction may be privileged where they form part of the necessary exchange of information for the giving of legal advice, even if the particular communication contains no specific legal advice. The communications in this case were plainly privileged and had not been waived.
4. Lu v SRA concerned anonymity for interests other than legal professional privilege. It did not address privilege and was generally irrelevant to an SDT application based on privilege. The SDT therefore erred in treating its observations on open justice as broadly applicable to privileged client communications.
5. The SDT also conflated the rules governing private hearings with the separate power to prohibit disclosure or publication. The thresholds of exceptional hardship and exceptional prejudice in Rule 35(2) did not govern an application under Rule 35(9). On the facts, no further analysis was necessary once privilege was established.

Solicitors Disciplinary Tribunal: refused an application under Rule 35(9) of the Solicitors (Disciplinary Proceedings) Rules 2019 to anonymise former clients and property information.

High Court (Administrative Court): allowed the appeal under section 49(1) of the Solicitors Act 1974 and made the requested anonymity order.