THE WAPI NEWS – “ROUNDUP”
WAPI MEMBER NOTICE
Confidentiality and Legal Professional Privilege—An Important Distinction
A recent High Court judgment, Carter-Ruck Solicitors v Solicitors Regulation Authority [2026] EWHC 2416 (KB), has highlighted the protection afforded to material covered by legal professional privilege.
Professional investigators should remember, however, that confidentiality and legal privilege are not the same thing.
Information supplied by a client or obtained during an investigation will normally be confidential. That does not automatically make it legally privileged—even where a solicitor instructed the investigator or the material is marked “Private and Confidential”.
An investigator’s report, notes, correspondence or other material may attract litigation privilege where it was produced for the dominant purpose of existing or reasonably contemplated adversarial litigation. Whether privilege applies will always depend upon the particular facts and should be determined by the instructing solicitor.
Members should therefore:
- preserve the confidentiality of all client and case material;
- clarify with the instructing solicitor whether privilege is claimed;
- keep privileged and non-privileged material clearly separated where practicable;
- avoid describing material as privileged without legal confirmation; and
- seek instructions before responding to any regulatory demand, court order or compulsory request for production.
Privilege belongs to the client and can be lost through inappropriate disclosure. Members should not voluntarily release potentially privileged material without the client’s informed authority and advice from the instructing solicitor.
The High Court judgment concerns the specific document-production powers of the Solicitors Regulation Authority. The SRA has stated that it intends to seek permission to appeal. It does not create a general right for investigators to withhold documents from courts, regulators or other bodies exercising lawful powers.
This notice is intended as general professional guidance and does not constitute legal advice.
Posted by: Ian (D. Withers)
www.WAPI.org