How Carter-Ruck & Amersi v SRA and Al Sadeq v Dechert may reshape the handling of SRA investigations

For lawyers defending SRA investigations, the recent privilege decisions do more than settle an abstract point of law. They have an impact on what the regulator can compel, how an allegation of iniquity may be framed, and how firms should build a defensible record in matters carrying SLAPP risk. Privilege may restrict the evidence available to the SRA, but it does not reduce the professional standard expected of the solicitor.

Two decisions, one practical tension

In Carter-Ruck Solicitors and Mohamed Amersi v Solicitors Regulation Authority Ltd [2026] EWHC 2416 (KB), the High Court held that section 44B of the Solicitors Act 1974 does not authorise the SRA to compel a regulated person to produce material protected by a client’s unwaived legal professional privilege. The ruling concerns compulsory production. It does not decide whether the underlying work amounted to misconduct or a SLAPP.

Al Sadeq v Dechert LLP [2024] EWCA Civ 28 addresses a different question: when does the iniquity principle prevent privilege from attaching at all? The Court of Appeal held that the merits threshold is a prima facie case assessed on the balance of probabilities in light of the material available at the time. It rejected a heightened “strong prima facie case” threshold. The doctrine applies where the communication is part of, or made in furtherance of, the iniquity and, in the circumstances considered in Al Sadeq, extended to documents reporting on or revealing the established iniquity. It is not triggered merely because a client has behaved badly or litigation has failed.

Put together, the cases produce a practical tension. The SRA may suspect that the most revealing evidence lies in the private discussion between solicitor and client, but it cannot currently use section 44B simply to inspect privileged material and find out whether wrongdoing occurred. If the SRA relies on iniquity, it must first establish the necessary evidential foundation, ordinarily from material outside the privilege barrier.

Can the SRA use iniquity to get around Carter-Ruck?

The short answer is no, not simply by relabelling privileged material as potentially iniquitous. Carter-Ruck determines that section 44B does not itself authorise compulsory production of a client’s unwaived privileged material. The iniquity principle is conceptually different: where it applies, the relevant communication is not protected by privilege in the first place. It is therefore not a general regulatory override and cannot be used as a substitute for the statutory power rejected in Carter-Ruck.

In a SLAPP investigation, the SRA would need to identify the particular crime, fraud, abuse of process or other serious wrongdoing alleged; establish the required evidential foundation; and demonstrate the necessary connection between that iniquity and each communication or category of documents sought. The fact that a claim was aggressive, oppressive, unsuccessful or struck out does not, without more, establish iniquity.

The central practical difficulty is circularity. The SRA should not be permitted to inspect communications which are prima facie privileged merely to discover whether the iniquity principle might apply. Its case must first be supported by available evidence, ordinarily non-privileged material. Otherwise, iniquity would become a route around the protection recognised in Carter-Ruck rather than a carefully confined principle determining whether privilege attached at all.

The principal authorities on iniquity

The following authorities provide the framework for analysing whether the principle is engaged:

• R v Cox and Railton (1884) 14 QBD 153: The foundational authority. Communications made for the purpose of obtaining legal assistance in furtherance of a criminal or fraudulent purpose fall outside the ordinary scope of legal professional privilege.
• Ventouris v Mountain [1991] 1 WLR 607: Confirms that the principle is not confined narrowly to indictable crime or conventional fraud. It may encompass serious underhand conduct contrary to public policy or the interests of justice.
• Barclays Bank plc v Eustice [1995] 1 WLR 1238: An important authority in the development of the former “strong prima facie case” formulation. That heightened formulation should now be read subject to the Court of Appeal’s clarification in Al Sadeq.
• Kuwait Airways Corporation v Iraqi Airways Co (No 6) [2005] EWCA Civ 286: Considered the evidential threshold where the alleged iniquity also formed part of the substantive dispute. Al Sadeq later rejected the suggestion that such cases attract a specially heightened standard.
• BBGP Managing General Partner Ltd v Babcock & Brown Global Partners [2011] Ch 296: Illustrates the breadth of conduct capable of amounting to iniquity and the need to examine the relationship between the wrongdoing and the communication for which privilege is claimed.
• JSC BTA Bank v Ablyazov [2014] EWHC 2788 (Comm): Provides a modern discussion of the rationale and operation of the principle, including the need for an adequate evidential basis and a sufficient nexus between the communication and the wrongdoing.
• Al Sadeq v Dechert LLP [2024] EWCA Civ 28: The leading modern Court of Appeal authority. The merits threshold is a prima facie case assessed on the balance of probabilities using the material available at the time, not a separate “strong prima facie” standard. It also gives important guidance on the required relationship between a document and the iniquity.
• R (Morgan Grenfell & Co Ltd) v Special Commissioner of Income Tax [2002] UKHL 21: Not itself an iniquity decision, but a central authority on the fundamental status of legal professional privilege and the clarity required before a statutory power can override it. Its reasoning informs the privilege-protective analysis in Carter-Ruck.

What the authorities mean for an SRA investigation

The SRA must distinguish regulatory misconduct from the specific iniquity said to prevent privilege from attaching. It must identify the evidence supporting that allegation without treating the withheld privileged communications as proof of their own lack of privilege.  The analysis should ordinarily be document by document or category by category. The whole client file is not automatically “tainted”.

Even where iniquity is established, the SRA must show why the particular communication was sufficiently connected to it under the approach in Al Sadeq. The client remains the holder of privilege. A solicitor cannot waive it merely because disclosure may assist the firm’s regulatory defence.

Where the SRA’s likely approach is vulnerable

Circularity

The regulator may say the privileged file will reveal improper purpose. The response is that suspicion about unseen communications cannot itself establish, on the balance of probabilities, the iniquity needed to defeat privilege.

Misconduct is not automatically iniquity

Poor judgment, overstatement, inadequate supervision, lack of independence or an aggressive litigation stance may engage the SRA Standards and Regulations. They do not necessarily amount to fraud, dishonesty, abuse of process or equivalent serious wrongdoing. An unsuccessful claim, strike-out or adverse judicial comment does not prove what the solicitor knew or intended when advice was given. Defence teams should separate a poor outcome from an improper purpose. Even if an iniquity is established, the SRA must identify why particular communications formed part of or furthered it. The issue is not whether an entire file is “tainted”. A category-by-category and often document-by-document analysis remains necessary.

Client ownership

Privilege belongs to the client. The fact that waiver might assist the solicitor, or make the investigation easier, does not transfer control of the right to the firm or the regulator.

A defence strategy for an SRA investigation

What defence firms should tell clients in SLAPP-risk matters

The safest client communications are not artificial “defensive drafting”. They are accurate records of proper professional judgment. The file should show that the solicitor tested the merits, challenged assumptions, considered obvious defences, explored proportionate alternatives and refused to use litigation merely as pressure. Here are some examples of compliant communications with a client:

Merits and defences

“There is an arguable basis for a defamation claim, but the proposed publisher may rely on truth, honest opinion or public interest. We need to test the evidence supporting each disputed allegation before deciding whether proceedings are justified.”

Improper objective

“We can advise on lawful remedies to protect reputation and privacy. We cannot use litigation simply to deter criticism or impose expense where the proposed claim lacks a proper legal and evidential basis.”

Proportionality

“Before issuing proceedings, we recommend considering whether a focused correction, clarification, right of reply or undertaking would address the identified harm more proportionately.”

Client challenge

“We do not recommend including the proposed allegation in the letter. On the present material it cannot be stated accurately or supported by evidence.”

Tone and consequences

“The letter should identify the legal complaint and remedy sought without overstating likely costs, sanctions or consequences. Any confidentiality label must have a proper legal basis.”

Reassessment

“The new evidence changes the merits assessment. We recommend pausing the proposed step while we review whether the claim remains properly arguable and proportionate.”

Communications that create avoidable risk

Phrases suggesting that the objective is to “silence” a critic, make a defence unaffordable, stop publication “at all costs”, or apply pressure despite weak merits may become central to an SRA case. The same applies to exaggerated threats, misleading descriptions of possible sanctions, or correspondence labelled “private and confidential” or “without prejudice” without justification. The SRA’s SLAPP warning notice expressly focuses on unmeritorious claims, intimidatory or oppressive tactics, improper purpose, public-interest publication and the solicitor’s obligation to remain independent.

A concise investigation checklist

• Identify the precise alleged breach and the alleged iniquity.
• Record the SRA’s non-privileged evidential case.
• Preserve all potentially responsive material.
• Review privilege document by document and identify the privilege holder.
• Produce responsive non-privileged material within scope.
• Provide a careful privilege schedule or categorical explanation where appropriate.
• Do not invite or pressure waiver without separate, neutral advice to the client.
• Prepare a chronology showing contemporaneous merits, challenge and proportionality decisions.
• Audit outward-facing letters, pleadings and costs threats for accuracy and tone.
• Consider whether privileged material already supplied should be isolated, returned, deleted or excluded from decision-making.
• Reserve the right to challenge any attempt to infer iniquity merely from silence or unavailable privileged evidence.

Conclusion

The practical lesson is not that lawyers can hide behind privilege. It is that the SRA must respect the boundary between effective regulation and the client’s fundamental right to confidential legal advice. For defence practitioners, the strongest strategy is disciplined rather than obstructive: define the allegation, insist on the evidential route, protect privilege accurately, cooperate with what is properly within scope, and demonstrate from contemporaneous material that the solicitor exercised independent professional judgment.

For firms conducting reputation, privacy and media work, the best regulatory defence is built before any complaint is made. A file that records merits analysis, client challenge, proportionate alternatives and careful drafting is far harder to characterise as participation in a SLAPP or as an abuse of the solicitor-client relationship.

Evan Wright is a partner and barrister at JMW Solicitors. Evan specialises in professional regulation defence.

Olivia Gregson is a paralegal in the professional regulation team.