Supreme Court: SRA to seek permission
The High Court has granted the Solicitors Regulation Authority (SRA) permission to appeal the Carter-Ruck ruling and issued a leapfrog certificate to take it straight to the Supreme Court.
Mr Justice Butcher held last month that the regulator does not have the right to require the production of privileged documents from law firms without a waiver from the client.
The SRA confirmed that, in granting the leapfrog certificate, the trial judge recognised that his decision raised points of law of general public importance and that there were arguable grounds for appeal.
A spokesman said: “The SRA will now seek permission from the Supreme Court in the hope that it will address the matter urgently, given its importance to the effective regulation of the profession.”
Businessman Mohamed Amersi and his solicitors, top London media firm Carter-Ruck had sought a declaration from the High Court that the SRA’s use of production notices under s.44B of the Solicitors Act 1974 was unlawful.
He told Legal Futures: “I am very happy that the SRA has been given leave to appeal as this is an important point for the entire legal community.
“Whilst I am confident that we will prevail, the law can only be clarified by an act of Parliament or by a decision of the Supreme Court so it is right that this can now happen.
“However, I hate to think how much the SRA is spending trying to override privilege which properly belongs to the client.”
The SRA told the High Court 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”.
He decided that “at best, from the SRA’s point of view”, the terms of s.44B “might be said to be equivocal” on the issue.
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.”
Campaigners warned that the ruling left the SRA “toothless”, while legal regulation expert Iain Miller wrote on Legal Futures: “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.”
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