Businessman Mohamed Amersi and Carter Ruck seek declaration on SRA’s access to privilege
The High Court is to rule on whether the Solicitors Regulation Authority has the power to examine legally privileged material as part of its investigations.
The challenge has been brought by businessman Mohamed Amersi and his solicitors, London media law firm Carter Ruck, in response to two statutory production notices issued by the regulator earlier this year.
According to SRA guidance, the authority considers that it can view privileged documents and information but “we can only use them for our regulatory purposes.”
Mr Amersi and Carter Ruck are seeking a declaration that the SRA is not entitled to see privileged material.
The regulator’s investigation concerns alleged misconduct by Carter Ruck in its work for Mr Amersi, a former Conservative Party donor. His libel action against former Conservative MP Charlotte Leslie was struck out in 2023. Mr Amersi is currently suing the BBC over a Panorama broadcast and accompanying article that made allegations against him following publication of the Pandora Papers.
Campaigners have accused Mr Amersi of engaging in so-called SLAPPs, or strategic litigation against public participation. He has consistently rejected those accusations.
In a statement, Carter Ruck confirmed that 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 firm added: “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.”
The legal textbook The Law of Privilege notes that there is “serious doubt” about whether the SRA can use section 44B notices to access privileged material. It states that determining whether a regulator has such a power requires examination of the relevant legislation and whether it expressly overrides privilege or does so by necessary implication, which it describes as a stringent test.
Commenting on the case, solicitor Dan Neidle wrote on LinkedIn 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 writing on LinkedIn, Browne Jacobson partner Gary Oldroyd said it was “not surprising” that the SRA’s powers under section 44B were being tested. “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.”
He added that if the case were decided against the SRA, an amendment to the Solicitors Act would be required. “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.”
He noted that the Post Office inquiry had only uncovered key evidence because privilege was waived and that similar incidents might otherwise remain hidden.