Amersi: Challenging SRA’s power
Serious wrongdoing by solicitors may be shielded from regulatory action if the Solicitors Regulation Authority (SRA) does not have the right to view privileged material, the High Court will be told next month.
Parliament “clearly intended” for the SRA to have the power to require production of a solicitor’s files so it could investigate cases of alleged misconduct, it said.
As we have previously reported, this power is being challenged by businessman Mohamed Amersi and his solicitors, top London media firm Carter-Ruck.
The claimants are seeking a declaration that the SRA’s use of production notices under section 44B of the Solicitors Act for the disclosure of legally privileged material is unlawful.
The parties yesterday released an agreed case summary ahead of the three-day hearing, beginning on 20 July.
The claimants assert it is well established that the intention to override privilege requires express wording or necessary implication, neither of which are present in section 44B.
Further, it emerged last week that, during the passage of what became the Legal Services Act 2007 through Parliament, the government rejected an amendment which would have given the SRA this express power.
The court will have to decide whether this is admission in accordance with the rule of Pepper v Hart to resolve any ambiguity as to whether 44B enables the SRA to take privileged materials.
The SRA’s case is that the wording of section 44B as originally enacted shows Parliament’s “clear intention” to allow it to view privileged material.
“Section 44B is not ambiguous or absurd, and no reference to Hansard is required to interpret it. In any event, in so far as such reference is appropriate, the passage from Hansard on which the claimants rely does not meet the Pepper v Hart criteria because it is not clear, is inconsistent with records of other parliamentary debates and, if interpreted as the claimants suggest, appears to be premised on a mistake by Parliament as to the effect of the existing law, at least as it was understood at the time.”
The SRA argues it is “axiomatic” that, to do its job of monitoring standards, it “must be able to view privileged material”.
If it cannot, “there is a risk that serious wrongdoing on the part of solicitors may be occluded from regulatory oversight”.
The SRA stresses that clients’ privilege is safeguarded when it has access to their materials. It may only use them for the purposes of its investigation and enforcement proceedings against the solicitor or firm it regulates.
“The SRA cannot use the privileged materials in regulatory investigations or proceedings against the client themselves.”
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