New ruling to have major impact on SRA powers to investigate law firms

The recent High Court decision in Carter Ruck & Ors v SRA Ltd, ruling that the Solicitors Regulation Authority does not have statutory power to compel a law firm to disclose documents covered by professional privilege, has serious implications across the regulatory and disciplinary community.

The background

The decision last week comes from a defamation claim between a Tory political party donor and a Tory MP. The donor lost his claim and the MP reported the behaviour of his law firm, Carter Ruck, to the SRA. During the subsequent investigation, Carter Ruck argued that the SRA did not have statutory authority to require disclosure of material otherwise protected by legal professional privilege where the consent of the client had not been given. The Firm argued that such a requirement would infringe privilege and the protection enjoyed by the client under Art 8 ECHR. The SRA disagreed. It relied upon two principal propositions: (a) the power was to be implied within section 44B; or (b) alternatively, that disclosure to a regulator did not in any event infringe privilege given the public purpose to which the regulator’s powers are directed.

Before the High Court, it was agreed that the position was unclear and required clarification. After an extensive review of the regulatory framework and caselaw, Butcher J concluded that there was no power. He observed:

155. “I have thus concluded that s. 44B does not permit the SRA to require the production of documents subject to the client’s unwaived LPP.  At best, from the SRA’s point of view, its terms might be said to be equivocal.  That is not enough to override the fundamental right of LPP.  It is not ‘compellingly clear’ that there is an override of LPP implied into s. 44B.  The SRA has not surmounted the ‘high threshold’ for a necessary implication.  There is no authority which binds this court to reach the conclusion that there is such an implication.  But this court is bound to find that there is no ‘noninfringement’ or permissible infringement exception to LPP in the case of documents required by a legal regulator.

156. I should emphasise that, in reaching these conclusions, I have not had to consider, and express no view, on the question of whether it would be desirable for the SRA to have the power for which it contends. That is, ultimately, a matter for Parliament.” 

The rationale for the judgment is clear. Nonetheless, it has prompted wider debate as to whether it will serve to undermine regulatory powers and the protection aims which they serve. Whilst the SRA continues to assess its position, others have not been slow to express concern.

The campaign group Spotlight on Corruption has called the judgment “a major blow for the SRA – and for the public interest”. The SRA has similarly issued a statement. Jonathan Peddie, SRA Executive Director – Investigations, Enforcement and Litigation, said;

“It is vital that we have access to all relevant evidence when investigating potential wrongdoing. Our ability to get to the truth of many matters may be compromised if we can no longer access information protected by legal professional privilege… This enables us to fulfil our regulatory role to protect the public and uphold the integrity of the legal profession. This case raises complex and important questions about how we have, for many years and without legal challenge, used our powers under section 44B of the Solicitors Act 1974 to obtain information relevant to our investigations. We respectfully disagree with the court’s decision, and given the significance of the issues involved, are seeking permission to appeal.”

Outer Temple’s Regulatory & Disciplinary team take the view that this ruling has significant implications for the SRA.

Ed Morgan KC regularly acts on behalf of professional regulators including the SRA. He said of the ruling;

“The situations in which SRA may be required to exercise their regulator powers of investigation and/or enforcement are many and varied.  As with any regulator, its ability to serve the public interest and uphold professional standards is dependent upon access to information. There will be instances in which obtaining client consent poses no difficulty. However, this judgment makes clear that, where such consent is absent, as a matter of statutory construction, if a regulator is to enjoy this important right of access, it must be expressly provided for in the language of the statute and cannot be implied.”

James Counsell KC regularly acts on behalf of professional regulators  including the SRA and the BSB, and on behalf of professionals being investigated by both those regulators. He comments;

“It is obvious that this ruling has extremely wide implications for the solicitors’ profession’s regulator.  It is not yet known how many existing live cases are likely to be affected if the decision stands and it is conceivable that, besides existing cases, those already dealt with may wish now to challenge decisions made in the past by the Tribunal. An appeal would seem to be inevitable unless legislation is brought in to reverse the effect of the judgment. To prevent the SRA from obtaining access to solicitors’ files is going to make the task of investigating misconduct against uncooperative firms well-nigh impossible and one has to question whether, ultimately, that is in the public interest.”   

This has been widely covered in the media. Read the full judgment and the SRA’s response.

Speak to an expert

Edward Morgan KC’s practice focuses on employment law, commercial law, disciplinary and regulatory work and inquests. As part of his regulatory law practice, he has cultivated extensive experience in a number of specialist sectors, including the legal regulatory sector and is regularly instructed to provide strategic advice and conduct governance investigations and reviews.

His also has extensive experience in Ecclesiastical and Canon Law and drafted the rules of procedure for the National Tribunal Service of the Catholic Church in England & Wales.  In this specialist regulatory field, he provides strategic and compliance advice in relation to administration of trusts, Trustee duties, administration of property, clergy discipline and constitutional reform.

James Counsell KC is widely recognised in the fields of Clinical and Professional Negligence, Personal Injury, Regulatory and Disciplinary hearings  and Financial Services claims, both in the UK and abroad.

A longstanding background in regulatory and disciplinary work beginning with his work for Lloyd’s of London and now spanning the whole range of regulatory work both for and against professionals, including appearing in hearings involving doctors, dentists, accountants, solicitors, barristers, IFAs and actuaries.

Regularly instructed by the BSB and the SRA, he prosecutes misconduct hearings against solicitors and barristers for dishonesty and sexual impropriety as well as defending.

To find out more, contact To find out more, contact Nick Levett on +44 (0)20 7427 4908, Paul Barton on +44 (0)207 427 4907 or Graham Woods on +44 (0)207 427 4902 for a confidential discussion.

Legal Blogs, News 25 Sep, 2026