Carter-Ruck v SRA: High Court rules section 44B notices cannot compel privileged material

The High Court has ruled that the Solicitors Regulation Authority cannot use a notice under section 44B of the Solicitors Act 1974 to require solicitors to produce documents subject to their clients' legal professional privilege, where the client has not waived it.

In Carter-Ruck Solicitors & Anor v Solicitors Regulation Authority Ltd [2026] EWHC 2416 (KB), Mr Justice Butcher decided an expedited Part 8 claim heard in July 2026. Justin Rushbrooke KC and Richard Howell appeared for the claimants, the firm and its client Mr Amersi, and Tamara Oppenheimer KC and Philip Ahlquist for the regulator.

The SRA has investigated the firm since 2023 over its conduct in bringing or threatening data protection and defamation claims for the client. The claimants deny wrongdoing. After the regulator issued three production notices, they sought a declaration that section 44B does not extend to privileged material. The regulator said it needed the power, particularly where complaints come from non-clients and in cases involving strategic lawsuits against public participation.

The judge applied the principle of legality. Legal professional privilege is a fundamental right, so it can be overridden only by express words or necessary implication, as the House of Lords held in Morgan Grenfell. He used the test from B v Auckland District Law Society, asking whether reading in the words "not being privileged documents" would produce an inconsistency or stultify the statutory purpose. Section 44B does not mention privilege, and no necessary implication was shown.

The judge rejected each of the SRA's six arguments. The shared public policy behind regulation and privilege did not make an override more likely. The link with intervention powers under Schedule 1 did not create an inconsistency, because section 44B itself governs which documents may be required, and interventions differ because they cannot work without access to files. The omission of a privilege proviso, unlike in section 147 of the Legal Services Act 2007 and section 46(11) of the 1974 Act, suggested at most a sensible inference, and section 46(11) created an anomaly for the SRA. Ministers' 1985 statements about extending powers to case files did not mention privilege. Safeguards such as anonymisation were not a basis for implication, and Parliament had not legislated for them. Limits on a small category of investigations would impede the purpose of section 44B, not stultify it.

Section 44BB, which lets the High Court order third parties including clients to produce documents, reinforced that view. On the SRA's reading, a client could be ordered to hand over privileged material to further an investigation of the solicitor, with no express override.

Parliamentary material may be consulted to check whether a clear intention to override a fundamental right was expressed. In 2007, a Law Society-backed amendment expressly covering privileged documents was withdrawn after a minister cited "real sensitivities", which showed no intention to override.

The SRA argued that authority bound the court. Butcher J held that Parry-Jones v Law Society stood only for its narrow propositions on a different rule and that no wider ratio could be identified. Sports Direct did not decide that the rule in Parry-Jones was an override. Paragraph 47 of Simms v Law Society was not part of its ratio and, if it was, was wrong. First instance decisions in Da Rocha-Afodu, Williams and Sa'id were not binding and were argued less fully.

The alternative "no infringement" argument failed, since Sports Direct bound the court to hold that no such exception exists, including for legal regulators. The Article 8 argument did not arise. In the judgement, whether the SRA should have the power is a matter for Parliament.