Amersi: Landmark case
The Solicitors Regulation Authority (SRA) does not have the right to require the production of privileged documents from law firms without a waiver from the client, the High Court has ruled today.
In a major blow to the regulator – which has already said it will seek to appeal – Mr Justice Butcher held [1] that “at best, from the SRA’s point of view”, the terms of s.44B of the Solicitors Act 1974 “might be said to be equivocal”.
He went on: “That is not enough to override the fundamental right of LPP [legal professional privilege]. It is not ‘compellingly clear’ that there is an override of LPP implied into s.44B. The SRA has not surmounted the ‘high threshold’ for a necessary implication.
“There is no authority which binds this court to reach the conclusion that there is such an implication. But this court is bound to find that there is no ‘noninfringement’ or permissible infringement exception to LPP in the case of documents required by a legal regulator.”
Businessman Mohamed Amersi and his solicitors, top London media firm Carter-Ruck sought the declaration that the SRA’s use of production notices under s.44B was unlawful.
The SRA told the court [2] that serious wrongdoing by solicitors may be shielded from regulatory action without this power.
Butcher J decided that s.44B does not expressly override LPP and that “could easily have been provided for had that been intended”.
It was also “not easy to see how, by a process of implication, the provision to be implied is
such as to override the client’s LPP, but not the solicitor’s own LPP”.
Butcher J rejected the argument that finding the SRA did not have the power would “stultify” the statutory purpose of s.44B.
“There are many cases where the SRA can investigate without relying on a statutory override of LPP. Most cases of client complaints (where there is likely to be a waiver); cases of workplace bullying and harassment, and other cases which do not involve communications involving the client’s LPP; and cases involving the iniquity exception, fall into this category.
“In cases of a complaint by an opposing party, the communications between the parties will be available and are likely, in many instances, to comprise the material which is relevant to an allegation of abuse of process.
“There is no indication that Parliament regarded investigation of the type of case which was not of these sorts but which involved consideration of documents/information subject to LPP to be a ‘major plank’ of the purpose of s.44B. Had it done so, then it is all the more surprising that it did not make specific provision for LPP.”
Mr Amersi said: “This is a landmark case. Legal privilege is no different to a patient’s medical records – how would any patient feel if theirs were disclosed without consent?
“For the first time, the court has confirmed that the SRA cannot override privilege which belongs to the client. I am pleased to have made legal history in defending that principle.”
A statement from Carter-Ruck added: “This is clearly a landmark decision for the legal profession and its clients but at its heart is a simple but fundamental principle – namely that, in the absence of an express statutory requirement to the contrary and with very few exceptions, a client’s legal professional privilege is sacrosanct.
“As the judgment shows, that principle has been reinforced by numerous decisions of higher court authority.
“Under the professional rules applicable to solicitors, Carter-Ruck was required to defend Mr Amersi’s privilege and we stood shoulder to shoulder with him in doing so.”
Jonathan Peddie, SRA executive director for investigations, enforcement and litigation, stressed the importance of it having access to “all relevant evidence” when investigating potential wrongdoing, including privileged material.
“Having access to this information is not only in the public interest, but it can also provide evidence in proving solicitors and law firms have not committed misconduct. Not all clients may wish to waive privilege to allow their solicitor to demonstrate that.
“This case raises complex and important questions about how we have, for many years and without legal challenge, used our powers under section 44B of the Solicitors Act 1974 to obtain information relevant to our investigations.
“We respectfully disagree with the court’s decision, and given the significance of the issues involved, are seeking permission to appeal.
“In the meantime, we are considering the judgment carefully and are taking immediate steps to manage its operational implications, including providing guidance to our staff regarding the handling of ongoing cases.”
The regulator’s investigation was 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.
Last month, the charity Spotlight on Corruption said [3] the government needed to give both the SRA and Financial Conduct Authority explicit powers to see privileged material when investigating lawyers, even if the SRA won the case.