Guest post by Iain Miller, a partner specialising in legal services regulation at City firm Kingsley Napley and general editor of Cordery on Legal Services
Miller: A statutory power would need clear safeguards
The High Court decision in [2026] EWHC 2416 (KB) [1] deals with the narrow but important question of whether the SRA can obtain client material that is subject to legal professional privilege (LPP) using its statutory power under section 44B of the Solicitors Act 1974. Spoiler alert: It can’t.
At a high level, the case is about two competing public interests. The first is that LPP is a fundamental human right that can only be abrogated by a clear intention of Parliament.
The second is that, if the SRA is not able to look at client privileged material, it would make a reasonable proportion of its investigations more difficult, if not impossible. That would undermine its ability to regulate the profession. The same would apply to other legal services regulators
This is not a new problem, but it has become more significant by two separate developments. First, the courts have historically readily found that the SRA can obtain LPP material through a line of cases dating back to 1969. However, that judicial sympathy has become less easy to justify as LPP has become elevated to a fundamental human right.
Second, previous iterations of the SRA were primarily concerned with investigating client complaints where the issue seldom arose because the client could waive their LPP.
Now the SRA’s area of interest extends to cases where they are investigating complex facts often based on information from a third party. The SRA’s interest in SLAPPs – which gave rise to this case – is a prime example.
In a carefully analysed decision, Butcher J came down in favour of the first public interest on the basis that the statutory language of section 44B was not enough to displace the right to LPP.
However, this is unlikely to be the end of the matter. The SRA will no doubt seek permission to appeal and there is an open question as to whether that will be to the Court of Appeal or a leapfrog appeal to the Supreme Court.
In the meantime, the decision will cause real issues for SRA investigations and bringing disciplinary cases. The post Carter-Ruck position is similar to that which exists in relation to wasted costs hearings where the lawyers are given the benefit of the doubt because the court cannot look at material that is subject to LPP (see Medcalf v Mardell [2002] UKHL 27).
Section 44B is also an important feature of many SRA investigations because it is also a mechanism to ensure that firms hare able to hand over material which may be subject to a duty of confidentiality. It provides a statutory gateway that overrides these concerns and is often requested by a firm prior to disclosure.
The LPP point has been brewing for some time but many firms have not sought a confrontation with the SRA and instead have handed over LPP material subject to preserving the point should it go against the SRA.
Now this approach is no longer available to them. All disclosure to the SRA must exclude LPP material, which will not only hamper investigations but also cause additional work for firms providing disclosure.
Of course, another answer to the problem is that the Ministry of Justice agrees to legislate to make clear that the section 44B powers (and similar powers) apply to client LPP material. It is not clear whether the government is willing to do this and if so whether that will need to await final determination from the courts.
If such a power is enacted, there will need to be clear safeguards put in place to ensure that the use and storage of the material is closely controlled.
One of the notable features of this issue over the years is the SRA’s failure both to recognise that there may be limits to its powers and to put in place procedures and safeguards for ensuring the power was used sparingly as well as the handling and use of LPP material once obtained.
Iain Miller will be speaking at the Legal Futures Regulation & Compliance Conference [2] on 3 December in London