Carter-Ruck challenges SRA's claim that it can demand privileged documents

The Solicitors Regulation Authority’s bid to get a High Court declaration that it has the power to require solicitors provide documents subject to legal professional privilege is ‘unreal’, the court heard today.

The trial before Mr Justice Butcher centres on whether the SRA has power under section 44B of the Solicitors Act 1974 to require a solicitor to provide it with material subject to legal professional privilege (LPP).

The issue surfaced in 2023 when the SRA opened an investigation into the conduct of defamation firm Carter-Ruck while acting for buisnessman Mohamed Amersi. 

Amersi had instructed Carter-Ruck in a defamation claim against former MP Charlotte Leslie which was dismissed by the High Court in June 2023. The Court of Appeal refused permission to appeal. Leslie said at the time she would be making a complaint to the SRA about the firm. In a statement given at the time, Carter-Ruck ‘strongly rejected’ any suggestion of misconduct.

Carter-Ruck is now seeking a declaration that the SRA is not entitled in law under s44B to require the production of material subject to LPP. The SRA seeks a declaration that it does have this entitlement. 

Amersi is currently suing the BBC for defamation over a Panorama broadcast and an article published before the broadcast. Some of the documents sought by the SRA are relevant to those proceedings, the court heard. Amersi has not consented to waiving LPP. 

Justin Rushbrooke KC, for the firm and Amersi, told the court today when it came to LPP the ‘solicitor’s mouth is shut forever’ – absent a client waiving privilege or a statutory reason why disclosure of LPP material can be made. ‘If section [44B] contains no express words for overriding privilege, which of course it could have done, it follows therefore that we are in territory of a test of stringent application that is not a matter of interpretation, it is a matter of express language and logic,’ he said.

LPP ‘is a fundamental human right upon which the administration of justice depends’, he added.

Rushbrooke said the matter ‘is put beyond doubt in the current iteration of s44B when one refers to the exchange in Hansard records in 2007’. From those records, Rushbrooke quoted the shadow lord chancellor Lord Kingsland (the late Christopher Prout QC) on an amendment to the Legal Services Bill ‘proposed by none other than the Law Society…which would expressly confer power to override privilege along with certain safeguards to protect it, which the Law Society accepted would be necessary’.

In written submissions, he added: ‘The fact the Law Society was lobbying parliament for this power shows that, contrary to what SRA’s case in this claim, the law was not “understood at the time”, at least by its predecessor, clearly to confer the power it now contends has existed for decades. In fact, the Law Society believed that “the existing power… works reasonably well although it needs… to deal with LPP”.’

The Lords amendment was rejected and subsequently withdrawn, the court heard.

There is ‘no authority binding on this court’ which holds that s44B overrides LPP, Rushbrooke said. ‘The reason why it may be an issue so ripe for determination now is because of the SRA [and] the way it sees its role in investigating third party complaints. A solicitor accused of professional misconduct, subject to complaints of professional misconduct, being investigated by the SRA, is prevented - just as he would be in the court - from deploying privileged material in his own defence, absent of course of waiving of privilege from his client.

‘He cannot deploy privileged documents that he may have access to in order to defend himself. He cannot deploy, for example, in his oral evidence oral instructions he was given. [He] might well as a matter of process…show very little knowledge of the substance of the allegation. His mouth is shut forever. It is one of the features which makes the SRA’s construction of 44B unreal,' he said. 

‘There can be no dispute, and hopefully there is no dispute, that the solicitor’s mouth [in relation to LPP material] is shut forever absent some statutory or authorisation to the contrary.’

The trial continues.