When a regulator investigates a solicitor, the client's file may be the most direct account of what happened: the instructions received, the advice given and the reasons for a particular step. It also contains communications made in confidence. If the client opposes disclosure, who decides whether the regulator may see them?
That question produced the High Court's decision in Carter-Ruck Solicitors and Mohamed Amersi v Solicitors Regulation Authority Ltd [2026] EWHC 2416 (KB). Mr Justice Butcher held that a notice under section 44B of the Solicitors Act 1974 cannot compel a regulated person to produce material protected by a client's legal professional privilege (LPP) where the client has not waived it. The ruling protects a right belonging to the client, although the notice is addressed to the solicitor, and clarifies the scope of the SRA's information-gathering powers where privileged material is concerned.
The SRA disagrees with the judgment and is seeking permission to appeal. For now, firms and investigators must distinguish a demand for relevant information from a power to override privilege. The decision resolves neither the underlying allegations nor the case for wider powers.
When an investigation meets client privilege
The SRA opened an investigation into Carter-Ruck and one of its partners in September 2023. It concerned the firm's conduct while acting for Mohamed Amersi in bringing or threatening data protection and defamation claims in 2021 and 2022. The firm, the partner and Mr Amersi deny wrongdoing, including any suggestion that they sought to mislead the court. Nothing in Butcher J's decision resolves those allegations.
The regulator served three production notices under section 44B, dated August 2024, February 2025 and October 2025, requiring documents relating to Mr Amersi's client files. Mr Amersi raised concerns about the use of confidential and privileged material. He indicated a willingness to assist if he received appropriate assurances that his documents would not be shared with third parties. The SRA provided details of its procedures for safeguarding privilege, but no agreement on production followed. Carter-Ruck and Mr Amersi then sought a declaration about the SRA's legal power. The claim proceeded under Part 8 and was heard over three days in July 2026.
The SRA argued that access to such material may be relevant to certain investigations. A client complaining about their own solicitor may waive privilege, whereas a client may maintain it where concerns are raised by an opposing party or another third party. The regulator submitted that confidential exchanges could be relevant when considering, for example, whether assertions had a proper foundation, appropriate advice had been given or a client's purpose in bringing proceedings had been examined. It referred to investigations into suspected strategic lawsuits against public participation, or SLAPPs, as an example of circumstances in which such questions might arise. Those examples formed part of the SRA's argument about the scope and purpose of section 44B, rather than findings concerning Carter-Ruck.
Privileged material may also contain instructions or advice relevant to understanding a solicitor's conduct. The judgment therefore raises questions about how such material is treated where the privilege holder does not consent to its disclosure.
Privilege belongs to the client
Section 44B allows the SRA to require specified information and documents where it is satisfied that this is necessary to investigate professional misconduct or other matters within the section. Its language is broad. It does not, however, say that client privilege may be overridden. Butcher J's starting point was that LPP is a fundamental common law right. Under the principle of legality, general words will not take away such a right unless Parliament has done so expressly or by necessary implication.
The distinction between an implication that is necessary and one that is merely useful carries much of the judgment. Drawing on R (Morgan Grenfell & Co Ltd) v Special Commissioner of Income Tax and B v Auckland District Law Society, the judge asked whether reading the words "not being privileged documents" into the power would cause an inconsistency or defeat its purpose.
LPP is narrower than confidentiality. Its existence must be assessed for the particular document or communication; a client file is not privileged in its entirety merely because it is confidential. Nor is the right the solicitor's to waive. The judgment notes both that a client's complaint against their solicitor may support an implied waiver and that communications made to further fraud or other iniquity do not attract privilege. Conversely, where a client's privilege is arguable, the lawyer has a duty to assert it on the client's behalf. A client's refusal to waive it cannot be interrogated for its motives.
The decision requires an assessment of privilege for the material sought and a response that respects the client's right and the solicitor's regulatory obligations.
Why intervention is different
One of the SRA's principal arguments drew on its powers to intervene in a solicitor's practice. An intervention can require the regulator or its appointee to take control of files, including privileged material. Section 44B also draws on provisions in Schedule 1 concerning the production and enforcement of document requests. The regulator submitted that Parliament could not have intended a different answer on privilege for an investigation.
Butcher J accepted the premise that an intervention must permit access to complete files. Without that access, the SRA could not take over the practice or ensure that clients' matters were dealt with. He rejected the proposed consequence. Under section 44B, the starting point is the scope of the notice that the section permits; the borrowed Schedule 1 provisions then address enforcement. They do not enlarge the category of documents that the notice may lawfully demand.
The functional distinction was decisive. The court considered whether excluding privileged documents would defeat the statutory purpose of section 44B and concluded that it would not. It considered it significant that many investigations can proceed without an override: clients may waive privilege when they complain, allegations such as workplace misconduct may not involve it, and evidence of dealings with an opposing party may be available outside privileged communications. On the court's analysis, the fact that privilege may restrict the material available in particular cases was insufficient to satisfy the stringent test for implying the removal of a fundamental right.
The SRA contrasted section 44B with provisions expressly preserving protection against compelled production, including a Legal Ombudsman power. An express saving elsewhere did not establish that Parliament had silently abolished privilege here. Safeguards such as restricted access, anonymisation and private hearings were relevant to the proposed handling of sensitive material but could not determine whether section 44B itself conferred the power to compel its production.
The legislative history also formed part of the court's analysis. During passage of the Legal Services Act 2007, an amendment was proposed that would expressly have permitted regulatory access to confidential and privileged information in specified circumstances. The proposal was not ultimately enacted. Butcher J regarded that history as supporting his interpretation, although his construction of section 44B did not depend upon it.
Old authorities, modern privilege
The SRA argued that earlier decisions supported the access it had exercised for many years. In Parry-Jones v Law Society, the Court of Appeal had permitted inspection under the Solicitors' Accounts Rules 1945 notwithstanding clients' privilege. Butcher J treated that decision as binding on the particular rules it construed, rather than on the different section 44B power now in issue. The modern understanding that LPP protects against disclosure outside court proceedings also made it unsafe to extract a broad rule from the older reasoning.
Simms v Law Society concerned documents obtained in an intervention. Its passing reference to section 44B did not decide whether an investigation notice overrode LPP. Meanwhile, the Court of Appeal's decision in Sports Direct International plc v Financial Reporting Council defeated a distinct argument advanced by the SRA: supplying privileged documents to a regulator is not harmless, or merely a technical infringement, because the regulator promises to keep them confidential. Without a statutory override, the disclosure infringes the right. Butcher J held that a legal regulator has no special exemption from that proposition.
The judgment turns on the current power's text and purpose. It recognises access on intervention, client waiver and the iniquity exception. Whether a particular document qualifies remains a separate question.
What the ruling means for live investigations
The immediate task for a firm receiving a section 44B notice is to identify its legal basis and scope, preserve the requested material, and separate potentially privileged communications from material that can properly be produced. The privilege belongs to the client, so the client may need to be consulted about waiver and any proposed conditions on voluntary disclosure. A firm should give a reasoned explanation of any claim rather than treating the notice as void in its entirety. Those are practical implications of the ruling, not a procedure prescribed by Butcher J.
Equally, the judgment does not remove duties to provide full and accurate information or to cooperate with legitimate investigations. The SRA's published guidance still describes its ordinary information-gathering powers and the potential consequences of non-cooperation. Following Carter-Ruck, practitioners should check the regulator's current guidance when responding to a fresh notice and consider it alongside the High Court's construction of section 44B.
For investigators, the judgment establishes the boundary between material obtainable under section 44B and material protected by a client's LPP. Communications with the complainant, documents filed in proceedings, the solicitor's non-privileged records and evidence from other witnesses may remain available depending on the nature of the investigation. Privileged communications may contain information not replicated elsewhere, but the practical significance of that will depend on the facts of the individual case. The SRA has also said that privileged material may sometimes be relevant to clearing a firm of suspicion. The effect of the judgment on investigations will therefore become clearer as the ruling is applied in practice.
The distinction between section 44B and an intervention must also be kept in view. Intervention is a protective step with its own statutory conditions and purpose. The ruling does not turn it into an alternative means of routine evidence collection. Its importance lies in demonstrating why Parliament may authorise access for one function without necessarily authorising it for another.
What happens next?
The SRA has said it is seeking permission to appeal and is taking immediate steps to manage the decision's effect on ongoing cases. The High Court did not decide the claimants' alternative argument under Article 8 of the European Convention on Human Rights: once it held that section 44B did not override privilege on its ordinary construction, that question did not arise. Nor did it express a view on whether the SRA ought to have the disputed power. Butcher J said that policy choice belongs to Parliament.
An appeal would revisit the statutory interpretation, particularly the claimed implication from the structure and purpose of the 1974 Act and the treatment of older authority. Legislative reform would pose a different question. If Parliament were minded to permit compulsory access in defined circumstances, it would have to decide which investigations justify it, whose consent matters, how a disputed claim to privilege is determined, who within the regulator may inspect the material, and what limits apply to its later use or publication. Safeguards are not an answer to whether the present power exists, but they would be central to designing a new one.
The judgment draws a clear line under section 44B as the High Court considers it presently enacted: a client's legal professional privilege cannot be overridden by a production notice where the client has not waived it. That conclusion preserves the established protection afforded to privileged communications while recognising that the scope of regulatory access is ultimately determined by statute. The SRA's proposed appeal may now provide the next stage in determining where that boundary lies.
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