High Court ruling changes the position on regulators and privileged material

The High Court has ruled that the Solicitors Regulation Authority (SRA) cannot use its statutory power to compel solicitors to produce documents to require disclosure of material protected by legal professional privilege. In Carter-Ruck Solicitors & Amersi v Solicitors Regulation Authority Ltd, handed down by Mr Justice Butcher on 21 September 2026, the court rejected the basis on which the SRA had operated for decades.

The immediate effect is on SRA investigations, but the judgment has wider implications for professional regulators, including the Bar Standards Board (BSB), and for barristers and chambers dealing with regulatory investigations involving privileged material.

The case concerned the SRA’s demand for privileged client documents

The SRA began investigating Carter-Ruck in September 2023 in connection with its work for Mohamed Amersi in litigation against former MP Charlotte Leslie. The investigation formed part of the SRA’s wider work on strategic lawsuits against public participation, or SLAPPs.

The SRA issued notices under section 44B of the Solicitors Act 1974 requiring Carter-Ruck to produce documents from its client files. Amersi declined to waive legal professional privilege over the material. Carter-Ruck and Amersi denied wrongdoing and challenged the SRA’s ability to compel production of privileged documents.

The court rejected the SRA’s established approach

The SRA relied on longstanding authority, including Parry-Jones v Law Society, which had been understood as permitting regulators to require privileged documents where their use was restricted to regulatory purposes.

Butcher J rejected that approach in the context of section 44B. Legal professional privilege is a fundamental right, and Parliament must use clear words, or language from which an override necessarily follows, if it intends to remove that protection. The judge found neither in section 44B.

The court also rejected the argument that compelling production does not infringe privilege because the regulator is restricted in how it can subsequently use the material. The protection applies to the compulsory disclosure itself, not simply to what happens afterwards.

The SRA has indicated that it intends to appeal.

Privilege must now be considered before documents are produced

For solicitors facing future section 44B notices, a document does not become disclosable simply because the regulator has requested it. Responsive material that is legally privileged will need to be identified and withheld unless privilege has been waived or another lawful basis for disclosure exists.

The judgment may also affect historic disclosures. Where privileged documents have already been provided to the SRA under section 44B, firms may need to consider whether those documents should be returned and whether the SRA can continue to rely on them.

Existing disciplinary proceedings may also require scrutiny where allegations or evidence depend on privileged material obtained through section 44B. The consequences will depend on the circumstances of each case, but the judgment creates a potentially significant issue for ongoing investigations and proceedings.

Direct relevance for the Bar

Although the case concerns the SRA, the underlying principle is wider. The BSB also has powers to require information and documents from regulated persons. Carter-Ruck therefore raises questions about whether those powers can extend to privileged client material.

Whether the BSB’s particular statutory powers produce the same result will depend on their precise legal framework. However, the judgment provides a clear indication that a general compulsory production power does not automatically override legal professional privilege.

Where barristers and chambers are concerned, a regulatory production notice should no longer automatically be treated as authority to disclose privileged client material. The scope of the regulator’s power and the privilege position need to be considered separately before documents are produced.