06 - Regulatory investigations
Can governmental regulators require a privileged document to be provided to them?

No. Legal professional privilege is considered a fundamental right and can, generally speaking, be asserted in answer to any demand for documents by a public or other authority. Furthermore, statutory powers that confer compulsory information gathering powers are almost always coupled with privilege preserving provisions. Such statutory powers are very limited (for example, in relation to matters of national security).

The Court of Appeal in Sports Direct International Plc v. The Financial Reporting Council made it clear that it is very rare for statutory powers to override privilege. Unless a statute prevails over privilege, a regulator cannot go through the back door and require a client to produce privileged documents, where the client has a credible claim to assert privilege over those documents. The English Law Society has emphasized that when solicitors are confronted with requests to produce privileged materials which would involve trespassing on privilege, they should recall that it is truly exceptional for an authority to have the power to obtain such material.