In this article, Ben Hubble KC and Benjamin Fowler consider the decision of Butcher J in Carter-Ruck & Amersi v Solicitors Regulation Authority Limited [2026] EWHC 2416 (KB) and its impact on solicitors’ regulation.
For over half a century, the SRA has considered that its power to compel the production of documents authorises it to require the production of privileged material. In a decision handed down on 21 September 2026 ([2026] EWHC 2416 (KB)), Mr Justice Butcher held that this is not the case; the high threshold for implying that legal professional privilege (“LPP”) has been overridden by the SRA’s statutory power was not met, and there is no exception to the principle of LPP in the case of documents required by a legal regulator.
The investigation
The SRA commenced an investigation into Carter-Ruck in September 2023 arising from its conduct when acting for Mohamed Amersi, whose defamation claim against former MP Charlotte Leslie was struck out. He and Carter-Ruck deny any wrongdoing.
The SRA issued notices to Carter-Ruck requiring it to produce documents from Mr Amersi’s client files; Mr Amersi declined to waive privilege and commenced proceedings seeking a declaration that the SRA could not compel disclosure of privileged material.
The investigation is part of a wider effort on the SRA’s part to tackle so-called SLAPPs – strategic lawsuits against public participation. In general terms, it is suggested that communications between solicitor and client might reveal whether solicitors had checked that claims were properly arguable, and whether the solicitor advised against the use of litigation for improper purposes, and whether any court was being misled.
The Law
The SRA is empowered by s. 44B of the Solicitors Act 1974 (“the 1974 Act”) to produce documents specified in a notice. The SRA’s belief that this entitled it to have sight of privileged documents has its source in the 1969 Court of Appeal decision in Parry-Jones v Law Society [1969] 1 Ch 1. The jurisprudential basis for the decision was not entirely clear; Lord Denning considered that the Law Society’s power overrode privilege; Diplock LJ considered that LPP had no application outside judicial or quasi-judicial proceedings; and Salmon LJ agreed with both judges.
In R (Morgan Grenfell Ltd) v Special Commissioner of Income Tax [2003] 1 AC 563, Lord Hoffmann addressed the point obiter (as the case concerned the power of a tax inspector to compel access to privileged documents). Having expressed his difficulties with the reasoning in Parry-Jones (noting in doing so that it was hard to imagine a stronger Court of Appeal), he concluded that it was not on its facts wrongly decided, but that the true justification for the decision was not that LPP was overridden, but that it was not being infringed – the Law Society was not entitled to use the information disclosed for any purpose other than the investigation and this disclosure did not breach the clients’ LPP (or, if it “technically did”, it was “limited disclosure” which was authorised by the Law Society’s statutory powers).
The Morgan Grenfell formulation of the decision in Parry-Jones (the so-called ‘no-infringement principle’) has been applied by courts in later cases, including the High Court decision of Law Society v Charles Henry & Co [2015] EWHC 522 (QB), on the basis that it was established law that the s. 44B power to compel disclosure of documents did not breach LPP.
Meanwhile, the statutory powers of other regulators have been found by the Courts to include no power to override privilege (the ‘statutory override’ principle). The correct question – as posed by the Privy Council in B v Auckland [2003] 2 AC 736 – was whether the statutory power excluded LPP (which was a fundamental right) expressly or by necessary implication. This analysis was applied to confirm that LPP was not overridden by the statutory auditors regulations (Sports Direct International plc v Financial Reporting Council [2021] Ch 457) or the Legal Profession and Legal Aid (Scotland) Act 2007 (Scottish Legal Complaints Commission v Murray [2022] CSIH 46).
In his detailed and comprehensive analysis of the pre-existing case law, Butcher J considered the two bases advanced by the SRA in support of its contention that it was empowered to require privileged documents – the ‘statutory override’ and the ‘no-infringement’ principles. In summary, his reasoning was as follows:
- There is no express override in s. 44B of the 1974 Act.
- There is no necessary implication that LPP is overridden by the section:
- First, LPP is a fundamental right; it is not sufficient to say that it is more likely than not that Parliament intended it to be overridden.
- While the documents required to be produced or delivered in the case of an SRA intervention include those subject to the client’s LPP, this does not dictate that production under s. 44B will necessarily be the same.
- The Barras principle that Parliament is taken to legislate in knowledge of Parry-Jones and subsequent cases applying that decision would not apply where the provision considered in Parry-Jones was a different rule with different wording, and it was in any event in tension with other decisions.
- There are many cases where the SRA can investigate solicitors without overriding LPP, so this cannot be seen as stultifying the statutory purpose of s. 44B.
- There was no binding authority compelling a different conclusion; in particular, Parry-Jones.
- The alternative ‘no-infringement’ argument was contrary to the ratio in Sports Direct and is in any event to misconstrue the nature of LPP, which applies ‘for all time and in all circumstances’.
The SRA has indicated that it intends to appeal the decision. In light of the potential implications of this Judgment, it may be that the SRA seeks expedition for any such appeal.
The implications
The implications of this decision are far-reaching. They impact the response to future S.44B Notices, where solicitor Respondents will have to undertake file reviews to ensure that privileged documents are not provided, even if responsive to the terms of the S.44B.
But issues will also arise in respect of prior S.44 B Notices. This Judgment will likely affect the approach to existing investigations where privileged documents have already been provided by solicitor respondents in response to S.44B Notices.
Such solicitor respondents will now have to consider whether (they are obliged) to seek the return of such privileged documents from the SRA on the basis that they were provided under mistake of law and/or in response to SRA demands that exceeded its powers.
The SRA will have to consider its stance in respect of such requests and indeed whether investigations, which have relied on privileged documents obtained by S.44B Notices, can be continued or will need to be started afresh.
The SRA and solicitor respondents will need to consider the position of issued proceedings before the SDT. It is common for such proceedings to refer to privileged documents via the use of anonymisation regimes. It might be thought that such an approach is no longer fit for purpose if the SRA ought not to have had the privileged documents in the first place. If that is right, then wholesale revision of statements of case and even potentially abandonment of some allegations could potentially result – either because the charge relied on privileged materials or the defence cannot fairly be advanced without reliance on privileged materials.
Plenty for the legal profession, regulators and practitioners alike, to reflect on.
© Ben Hubble KC and Benjamin Fowler, 4 New Square Chambers, September 2026
This article is not intended as a substitute for legal advice. Advice about a given set of facts should always be taken.
