Amersi: Appalled by SRA’s conduct
The High Court is set to decide on whether the Solicitors Regulation Authority (SRA) has the power it claims to examine legally privileged material as part of investigations.
It is being challenged by businessman Mohamed Amersi and his solicitors, top London media firm Carter-Ruck, in response to two statutory production notices issued by the regulator earlier this year.
SRA guidance says it can look at privilege documents and information but “we can only use them for our regulatory purposes”.
The claimants are seeking a declaration that the SRA is not entitled to see privileged material.
The regulator’s investigation is into alleged misconduct by Carter-Ruck in its work for Mr Amersi, a former Conservative Party donor, whose high-profile libel action against Charlotte Leslie, a former Conservative MP and managing director of the Conservative Middle East Council, was struck out in 2023.
He has threatened libel claims against others and is currently suing the BBC over a Panorama broadcast and accompanying online article that made allegations against him following publication of the ‘Pandora Papers’.
Mr Amersi has been accused by campaigners of engaging in SLAPPs (strategic litigation against public participation), which he strongly rejects.
In a statement, Carter-Ruck confirmed it and Mr Amersi were seeking a declaration that the SRA’s use of production notices under s44B of the Solicitors Act for the disclosure of privileged material was unlawful.
“The SRA have filed a response seeking a declaration that the relevant statutory provision allows them to pierce privilege.
“The context is an investigation by the SRA into alleged misconduct by Carter-Ruck in its work for Mr Amersi. Insofar as the allegations have been articulated to Carter-Ruck, the firm denies any misconduct.”
In a separate statement, Mr Amersi said: “I am appalled by the conduct of the SRA; to force a lawyer to disclose legally privileged documents is like asking a doctor to disclose the medical records of a patient.
“Lawyers cannot advise clients properly if the threat of an SRA production notice is hanging over their heads.
“I suspect that this is a fishing exercise instigated by opponents who have mounted a concerted campaign against me and are now scraping the barrel. There is no justification for it and it would breach my constitutional rights.
“I am challenging the SRA position, together with my legal representatives Carter-Ruck, to ensure this decision cannot be allowed to stand.
“This is an important point of principle and many in the legal profession will support my position otherwise it will be impossible for any lawyer to advise a client properly or professionally”.
An SRA spokesperson said: “The application deals with matters relating to a live investigation, so we cannot discuss details.”
Certainly, there are questions about the SRA’s position. For example, the legal textbook, The Law of Privilege, says there is “serious doubt” about whether it can use section 44B notices to see privileged material.
“As matters stand, the extent to which any particular regulator of legal or other professionals… has the power to require disclosure of underlying client privileged material will require consideration of the particular legislation under which the regulator exercises its powers and whether that legislation overrides privilege either expressly or as a matter of necessary implication (which, as noted above, is a stringent test.”
Writing on LinkedIn, campaigning solicitor Dan Neidle said that, if the claim succeeded, “the SRA may never be able to investigate a law firm that acts abusively (without the consent of the client, which usually will not be given)”.
Also on LinkedIn, Gary Oldroyd, a partner at Browne Jacobson who specialises in defending claim against law firms, said it was “not surprising” that the SRA’s powers under section 44B was being challenged.
“Firstly, the Act does not expressly say that the right of inspection extends to privileged documents, although the SRA (and most law firms, I suspect) have always proceeded on the basis that privileged material can be inspected.
“Secondly, the ability of other regulators to inspect privileged material has been the subject of various recent challenges in the courts and perhaps it was only a matter of time before S44B came under the spotlight as a result.”
If the case went against the SRA, he went on, the Solicitors Act would need amending.
“Privilege cannot go unchecked,” he wrote. “Whilst privilege protects secrets, there must be a degree of transparency too. Privilege and the way it is claimed and exercised must be monitored and the SRA is the best monitor we have, for now at least.
“Privilege is ultimately designed to protect clients, but not the law firms they serve. Let’s remember, that had the Post Office not waived privilege for the purposes of the Horizon inquiry, the full horrors of the Post Office scandal may never have come to light.
“If the SRA cannot inspect privileged material, similar incidents of misconduct may never come to light in the same way.”
If S44B is found to not cover privileged material, does that mean that any lawyers that have complied with a notice to produce privileged material have violated privilege?