SRA investigations: Section 44B Notices

Section 44B of the Solicitors Act 1974 gives a power to the Solicitors Regulation Authority (SRA) to issue a Notice to a solicitor to prove information or documents. The power can be exercised only where it is:

• Necessary;
• For the purpose of an investigation;
• Into whether there has been professional misconduct or any failure to comply with any legal or regulatory obligations.

The Notice itself will be served usually under cover of a letter from the SRA. However, the Notice may be served in person and sometimes a like power is used in conjunction with intervention (to which see Schedule 1 of the Act). The Notice will specify the documents (or information required) and a time and place for production.

The legislation is complicated because of cross-reference with the intervention powers (contained in Schedule 1). However, it is important to note that it is a summary criminal offence to refuse, neglect or otherwise fail to comply with a requirement under a Notice.

There is no statutory right of appeal for the Respondent to a Notice. Accordingly, the only means of challenging the issue of the Notice is by way of judicial review (to which see R (on the application of Dean & Dean) v Law Society [2008] EWHC 2980). There is, however, a civil remedy available to the SRA in the event of full or partial non-compliance. The SRA is able to issue a Part 8 Claim for an Order from the High Court that the subject documents or information be produced (to which see Law Society of England & Wales v Sibley [2017] EWHC 1453).

There are additional powers to require explanations regarding documents and information and also powers to apply to the High Court to seek information and documents from third parties. It is a criminal offence to provide false information in connection with any of the powers (section 44BC).

There is little or no authority on the test of ‘necessity’ in the context of an ongoing ‘investigation’ and given the extension of the SRA’s disciplinary investigations into alleged sexual harassment and sexual activity within the profession and the consequential impact on privacy, one may reasonably expect litigation on the issue in the near future.

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