Parliament has given the SRA the power to require solicitors to hand over documents to assist it in its investigation of the conduct of solicitors. It has always been considered that this right overruled the legal professional privilege that a client has when he instructs a solicitor. Legal professional privilege is at the heart of our legal system. It allows a client to tell his or her solicitor everything relevant to the case or transaction in respect of which the solicitor is retained so that the solicitor can give accurate advice in the knowledge that he or she has the full facts as known by the client.
That position has now changed as a result of the case of Carter Ruck and another v The Solicitors Regulation Authority [2026] EWHC 2416 (KB). In this case, the SRA were investigating the conduct of the well known defamation, media and privacy firm in respect of the service of so-called SLAPP letters on behalf of their client, the second claimant. The investigation arose as a result of a complaint by the recipient of that correspondence.
The judge in a long and comprehensive consideration of the authorities held that the relevant statutory provision could not by implication overrule the historic and important right to legal professional privilege-an explicit provision was required.
We should not be too carried away by this judgment because:
- It is in practice only relevant where the client refuses to agree to waive the privilege-the privilege is the client’s not the lawyer’s. Most complaints to the SRA are from the client not a third party and, in such cases, the client will readily agree to waive privilege.
- It is highly likely that the SRA will appeal this judgment and it will therefore go to the Court of Appeal and then The Supreme Court so we should await the outcome of the appeal process.