Carter-Ruck Solicitors & Anor v Solicitors Regulation Authority

Legal professional privilege is a fundamental right. A statutory power to require a regulated solicitor to produce documents cannot override a client’s unwaived privilege unless Parliament uses express words or the override follows necessarily from the statutory text, context and purpose. General regulatory importance, practical difficulty, safeguards, or the fact that intervention powers may require access to privileged files do not satisfy that stringent test. Nor can a regulator rely on a general no-infringement or technical-infringement theory to avoid it. Section 44B of the Solicitors Act 1974 contains no such express wording and does not necessarily imply an override. It therefore cannot compel production of documents or information protected by the client’s unwaived privilege.

This was an expedited Part 8 claim by Carter-Ruck Solicitors and Mohamed Amersi against the Solicitors Regulation Authority. The SRA had issued three notices under section 44B of the Solicitors Act 1974 seeking documents from Carter-Ruck’s files concerning Mr Amersi. The first notice was withdrawn, but the claimants challenged the remaining notices.

The central questions were whether section 44B overrides client legal professional privilege by express words or necessary implication, whether disclosure to a legal regulator is otherwise a permissible or non-infringing disclosure, and whether the statutory scheme was compatible with article 8 of the Convention. The claim was determined at first instance.

Claim succeeded. The court concluded that section 44B of the Solicitors Act 1974 cannot require production of documents or information subject to the client’s unwaived legal professional privilege.

1. Legal professional privilege is a fundamental client right. It operates outside judicial and quasi-judicial proceedings as well as within them. It belongs to the client and is subject to recognised limits, including waiver and the iniquity exception.
2. Under the principle of legality, a fundamental right is overridden only by express words or necessary implication. Necessary implication must follow from the statutory text read in its context and purpose. It is not enough that an override would be sensible, reasonable or useful. The court applied the approach in R (Morgan Grenfell Ltd) v Special Commissioner of Income Tax [2003] 1 AC 563 and B v Auckland District Law Society [2003] 2 AC 736.
3. Section 44B contains no express override. Its investigative purpose would be impeded, but not stultified, if privileged material could not be compelled. The ability to obtain privileged files during an intervention under Schedule 1 did not dictate the same result for an investigation. The cross-reference in section 44B(7) applied enforcement machinery and did not import the intervention scope of paragraph 9(1).
4. Parry-Jones v Law Society [1969] 1 Ch 1 remained authority for its narrow rule 11 holdings, but did not establish a general statutory override of client privilege. The relevant observation in Simms v Law Society [2005] EWHC 408 (Admin) was not part of that decision’s ratio. The court was bound by Sports Direct International plc v Financial Reporting Council [2021] Ch 457 to reject any general no-infringement or technical-infringement exception for disclosure to regulators.
5. The court was entitled to inspect Parliamentary material to see whether there was a clear intention to override a fundamental right. The 2007 debate, including the withdrawal of a proposed express override, showed no such intention and reinforced the construction reached from the statutory text. The alternative article 8 argument was not decided because the domestic construction resolved the claim.

not stated in the judgment.