Legal professional privilege (LPP) is one of the oldest and most fiercely guarded protections in English law: a client's confidential communications with their lawyer made for the dominant purpose of giving or receiving legal advice and/or those covered by litigation privilege, are safe from disclosure to anyone, including regulators—unless there is an express statutory exception. A recent High Court decision, Carter-Ruck Solicitors and another v. Solicitors Regulation Authority Limited [2026] EWHC 2416 (KB), confirmed this, holding that a statutory notice under section 44B of the Solicitors Act 1974 cannot require a solicitor to produce documents subject to unwaived LPP.
The dispute
The SRA issued notices to Carter-Ruck under section 44B requiring production of client files held for a client, in connection with an investigation into Carter-Ruck’s conduct in bringing or threatening data protection and defamation claims on that client’s behalf. Carter-Ruck and the client objected that some of the material was privileged and that privilege had not been waived. They argued that the SRA had increasingly sought privileged material in its investigations into so-called “SLAPPs” (strategic lawsuits against public participation), sometimes while related litigation was still ongoing.
The SRA, in turn, said it needs the power properly to investigate cases, particularly those triggered by non-client complaints, where a solicitor may have pursued litigation improperly or failed to give proper advice. The SRA argued, first, that section 44B impliedly overrides LPP (a “statutory override” argument), and, second, that producing privileged material to a regulator for investigatory purposes either does not infringe LPP at all, or is a permissible infringement, because legal regulators occupy a different position from other regulators (a “no infringement” argument).
The decision
The court rejected both arguments, holding that section 44B does not permit the SRA to require production of documents subject to a client’s unwaived LPP. At best the section’s terms are equivocal, and that falls well short of the “compellingly clear" wording needed to override a fundamental right, such as LLP; the SRA did not meet the high threshold for a necessary implication.
The SRA had relied heavily on Parry-Jones v Law Society [1969] 1 Ch 1, arguing it established a statutory override permitting disclosure of privileged material to a regulator, confirmed as applying to section 44B by later authority. The court found this reliance misplaced: Parry-Jones did not clearly distinguish general duties of confidence from LPP, and proceeded on a now-discredited view that privilege only matters in judicial or quasi-judicial proceedings. It could not, therefore, be read as establishing a binding rule that a provision like section 44B overrides privilege.
On the “no infringement” point, the judge treated himself as bound by the Court of Appeal’s decision in Sports Direct International plc v Financial Reporting Council [2021] Ch 457, which had already rejected a “no infringement" exception in relation to the FRC’s own statutory notice powers under the Statutory Auditors and Third Country Auditors Regulations 2016 (SATCAR). The court confirmed there is no separate “no infringement” or “permissible infringement” exception available to any regulator, including a legal regulator, that would let privileged material be handed over without engaging LPP at all.
The judge was careful to note that he expressed no view on whether it would be desirable for the SRA to have the power to demand privileged documents. That, he said, is a matter for Parliament.
Why this matters
For general counsel and businesses, the decision is a welcome reaffirmation that legal advice given in confidence stays confidential, even where a client’s own lawyer becomes the subject of a regulatory investigation. In practice, it means that the SRA cannot see privileged documents without the client’s consent, however pressing the regulator considers its investigation to be.
This has real practical consequences across a wide range of matters and practice areas. The SRA has said it particularly needs access to privileged communications in cases involving non-client complaints and allegations that solicitors assisted clients in pursuing litigation improperly, including in high-profile SLAPP investigations. After this ruling, it cannot compel that access without the client’s consent. Firms that receive a section 44B notice will now need to review the file carefully, identify anything genuinely privileged (as distinct from merely confidential), and take instructions from the client on whether to waive privilege.
This is unlikely to be the last word. The SRA has already indicated it will seek permission to appeal, and given the significance of the point, permission may well be granted. We will continue to monitor developments in this area.
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