In the recent judgment in Carter-Ruck Solicitors & Anor v Solicitors Regulation Authority [2026] EWHC 2416 (KB) the High Court held that the Solicitors Regulation Authority could not compel law firms to produce client documents protected by legal professional privilege where that privilege has not been waived.

While the decision hinges on a discrete piece of statutory interpretation, the judgment underscores the fundamental importance of privilege and the high threshold for overriding it - even where it is in tension with competing public policy concerns. We look at the decision and what it means for regulatory investigations.

Privilege - a fundamental human right

Legal professional privilege (LPP) is a common law legal principle which allows a client to consult a lawyer in confidence, and have certainty that what passes between them will not be revealed without their consent. Courts in England & Wales have recognised LPP as "a fundamental human right" and, while it is possible for legislation to override LPP, the courts have also held that it can only be overridden by express words, or where that is the necessary implication of the legislation.

The question for the court in this case was whether s.44B of the Solicitors Act 1974 (the Act) passed that high bar to override LPP, such that the Solicitor's Regulation Authority (SRA) had the power to compel the production of privileged documents from a solicitor's client files.

The key facts

The SRA had been investigating a firm of solicitors, for their conduct in bringing / threatening to bring claims on behalf of their client. In support of that investigation, the SRA issued notices under s.44B of the Act, requiring the solicitors to produce certain documents from their client files. The solicitors contended that the SRA did not have the power to compel the production of documents which were subject to LPP, if their client (the owner of the privilege) did not consent, and the solicitors and their client (together the claimants) sought a declaration from the court to that effect.

Did the statute override privilege?

It was common ground between the parties that s.44B does not include express words to override privilege. The SRA argued though that it was a necessary implication of s.44B that it could compel production of documents subject to the client's privilege. The SRA mounted a number of overlapping arguments in support of this.

Among others, it argued that it was clearly empowered to compel production of a solicitor's files (including client privileged materials) elsewhere in the Act for the purposes of an intervention (i.e. where the SRA closes down a solicitor's practice), and it would introduce inconsistency if it could not do so also for the purposes of an investigation. It also argued that it would defeat the statutory purpose of s.44B if the SRA could not require the production of a client's privileged material in support of its investigation.

The court was not persuaded by these arguments. In their view, an SRA intervention was quite different from an SRA investigation – in an intervention there was a necessary implication that the Act overrode LPP, because the SRA could not effectively intervene without access to the client's privileged material.

The same could not be said of an investigation under s.44B – while an investigation may well be more difficult or less effective without access to the client's privileged material, it would not be impossible, and so it could not be said it was a necessary implication that privilege was overridden in investigations. Similarly, the court considered that while the statutory purpose of s.44B may be impeded if the SRA were not able to compel production of privileged documents, it would not be stultified, as there would remain many cases where the SRA would be able to conduct effective investigations.

Aside from its own construction of s.44B, the court further considered that there were no binding case authorities that construed s.44B differently, and that if anything, the parliamentary material demonstrated that there was no clear intention to override privilege – among other things, it showed that a proposed amendment that would have expressly overridden LPP had been abandoned.

"No infringement"

The SRA also advanced an alternative argument that, where privileged documents are handed over to a regulator, there is "no infringement" (or only a technical, authorised infringement) of LPP. This argument had been considered by the Court of Appeal in recent years in the Sports Direct case, where another regulator (the Financial Reporting Council) similarly argued it had the power to compel production of documents subject to LPP. The argument derives from comments made by Lord Hoffmann in R (Morgan Grenfell & Co Ltd) v Special Commissioner of Income Tax [2002] UKHL 21 who, in trying to rationalise an earlier court decision, said:

"I think that the true justification for the decision was not that [the clients] had no LPP, or that their LPP had been overridden by the Law Society's rules, but that the clients' LPP was not being infringed… In my opinion, this limited disclosure did not breach the clients' LPP or, to the extent that it technically did, was authorised by the Law Society's statutory powers." (R (Morgan Grenfell & Co Ltd) v Special Commissioner of Income Tax [2002] UKHL 21)

As explained in our article on the Sports Direct decision, the Court of Appeal held that Lord Hoffmann's comments did not create a separate "no infringement" exception, and in the absence of a statutory override (through either express words or a necessary implication), supplying privileged documents to a regulator would infringe privilege.

In this case, the court considered themselves bound by the Sports Direct decision and said there was no reason that the SRA should be able to claim the "no infringement" exception - they were in no different position to other regulators like the Financial Reporting Council (FRC).

A potential Supreme Court appeal

While this decision focuses on one regulator's powers and the interpretation of a specific statutory provision, it is also consistent with recent treatment of LPP in the context of other regulators. In part, that is because the High Court was bound by the Court of Appeal's decision in the Sports Direct case. The SRA has, however, been granted permission to appeal and a leapfrog certificate by the High Court, and is now seeking permission to appeal from the Supreme Court. As a result, both the judgment and the existence of the "no infringement" principle may yet be subject to further scrutiny.

Pending any appeal though, this decision underscores the courts' recognition of the fundamental importance of LPP, even where it may prove an obstacle for regulators and impede their investigations. Legal regulators are in the same position as any other regulator. However, as the court highlighted, while an inability to compel production of privileged client documents may hamper some investigations, there will be many more where it is not an obstacle – for example where a client voluntarily waives privilege to permit investigation of their complaint against a solicitor (or, in other cases, to demonstrate cooperation with a regulator); where an opposing party has inter-partes correspondence which evidences the complaint; or in the case of workplace harassment claims.

James Sidwell and Verity Barker have extensive experience advising on regulatory investigations, enforcement action and legal professional privilege. If you would like to discuss the issues raised by this decision, or regulatory investigations more generally, please get in touch.