A recent High Court judgment has significant implications for the Solicitors Regulation Authority (SRA) investigations, as it rules that the SRA cannot require production of material subject to a client’s legal professional privilege (LPP) if LPP has not been waived. This decision confirms the fundamental principle that a client’s LPP is sacrosanct, with very few exceptions.
Greg Treverton-Jones, an eminent regulatory silk and co-author of The Solicitor’s Handbook, notes that the sooner the law is clarified by the Court of Appeal and/or the Supreme Court, the better.
Implications for SRA Investigations
The judgment will impact investigations about allegedly abusive litigation, as the SRA will no longer be able to access privileged material unless the client waives privilege. Not all clients may wish to waive privilege, which could compromise the SRA’s ability to get to the truth of many matters. Jonathan Peddie, SRA executive director for investigations, enforcement and litigation, says that having access to information protected by LPP is not only in the public interest but also provides evidence in proving solicitors and law firms have not committed misconduct.
Claire Wallace, partner at Hickman & Rose, notes that the judgment threatens to upend the model by which the SRA currently conducts its regulatory investigations. Many allegations of misconduct relate to client work, and a restriction on obtaining client case files due to issues of privilege will inevitably make the SRA’s job much harder. They will have to determine what to do with privileged material they have already received and whether they will hand it back or seek to continue relying on it.
Susan Coughtrie, co-founder and co-chair of the UK Anti-SLAPP Coalition, says that the High Court judgment will leave the SRA without the necessary powers to tackle Strategic Lawsuits Against Public Participation (SLAPPs) and hold lawyers accountable for abusive litigation conduct. The inspection of privileged communications can often be the only way in which the SRA can determine whether a solicitor has breached their professional obligations.
Former Clifford Chance tax chief Dan Neidle, who secured a landmark anti-SLAPP court victory this year, believes that the judgment has ‘blown a large hole in the regulation of the solicitors’ profession’ and that the ‘government should change the law’. The SRA will now have great difficulty investigating SLAPP and other cases where a client’s solicitor harms other parties.
Reactions from the Legal Profession
Carter-Ruck, which was investigated by the SRA over its conduct in a defamation claim, welcomes the judge’s careful judgment, which confirms that its interpretation of the law was correct. Oliver Schneider-Sikorsky, partner at BCL Solicitors, notes that the judgment provides welcome clarity on the extent of the right to LPP and that the greater certainty provided by the decision benefits all clients by helping solicitors identify and safeguard privileged information while engaging constructively with regulatory requests.
The case that led to the judgment involved Carter-Ruck’s conduct in a defamation claim brought by businessman Mohamed Amersi. The SRA had sought to obtain privileged material from Carter-Ruck, but the firm argued that it was not entitled to do so under section 44B of the Solicitors Act 1974. The High Court agreed with Carter-Ruck, ruling that the SRA did not have the power to require production of material subject to LPP unless it had been waived.
Claire Cross, partner at Corker Binning, notes that the SRA has long asserted its need to review legally privileged material to properly investigate misconduct by solicitors. The ruling will make their job far more difficult, particularly in cases where clients do not waive privilege.
Impact on SLAPP Investigations
Helen Taylor, deputy director of Spotlight on Corruption, agrees that the ruling is a major blow for the SRA and the public interest in holding lawyers to account. The SRA’s inability to access privileged material will limit its ability to investigate and regulate the solicitors’ profession effectively.
