The High Court has provided some welcome clarity on a long-standing area of uncertainty concerning the scope of legal advice privilege in relation to 'intra-client documents'.
These are generally thought to be internal communications between members of a client or client group, and have for many years been considered to be disclosable in litigation proceedings, on the basis that 'client' has been defined as only those specifically tasked with seeking and receiving legal advice and privilege only applies to communications with the client directly to or from a lawyer.
This position has changed following the decision in Aabar Holdings SARL & Ors v Glencore Plc [2026] EWHC 877 (Comm). In this case, Mr Justice Picken considered specifically whether intra-client documents could attract legal advice privilege. The Judge held that legal advice privilege may be asserted in respect of intra-client documents, "provided that those documents were created with the dominant purpose of seeking legal advice".
The decision is significant because it widens the scope of documents to which legal advice privilege can apply, meaning that certain internal communications and documents which previously may have been disclosable may now be afforded legal advice privilege. This is a welcome development and reflects more accurately the commercial realities of businesses involved in obtaining legal advice and complex decision making when obtaining legal advice.
Legal advice privilege
Legal advice privilege protects confidential communications between lawyer and client which are made for the purpose of giving or receiving legal advice. It is distinct from litigation privilege, which requires litigation to be in reasonable contemplation and also applies to communications with third parties. Traditionally, the English courts have recognised that privilege can also apply to a limited category of communications and documents which may reveal the substance of legal advice, such as board minutes discussing legal advice which has been received. Prior to Aabar v Glencore, however, the status of intra-client communications and documents in a corporate context has been unclear.
Legacy of Three Rivers (No 5)
The Court of Appeal decision in Three Rivers (No 5) (Three Rivers (No 5) [2003] Q.B. 1556) remains the leading authority on legal advice privilege. As is well known, the Court of Appeal adopted a narrow definition of the corporate 'client', being only those specifically tasked with seeking and receiving legal advice. Communications between other employees may therefore fall outside the scope of legal advice privilege and be disclosable. This restriction has caused significant difficulty in the corporate context, but has not, unfortunately, been overturned by the Supreme Court and remains binding.
The issue arising in Aabar v Glencore
The issue came before the court as part of wider ongoing litigation involving three defendants, although the issue relating to legal advice privilege arose in relation to the First Defendant only, Glencore. The Claimants raised concerns regarding the disclosure exercise undertaken by Glencore, following Glencore informing the Claimants that they had approached all their disclosure obligations on the basis that the decision in Three Rivers (No 5) was wrongly decided. Instead, Glencore had treated legal advice privilege as applying to “all communications made for the dominant purpose of seeking or receiving legal advice”.
The Claimants responded by pointing out that Glencore's approach was inconsistent with Three Rivers (No 5). Subsequently, Glencore told the Claimants that it would no longer assert privilege on the basis that Three Rivers (No 5) was wrongly decided, and produced 885 documents that had previously been withheld. It then became apparent that, although Glencore no longer maintained that every employee within its organisation was to be treated as the 'client', it continued to assert privilege over communications between members of the 'client group', rather than those exchanged between client and lawyer.
In these circumstances the key issue before the court was whether legal advice privilege could protect documents exchanged between members of the relevant client group, or created internally by those individuals, where the dominant purpose was to seek legal advice but where no lawyer was directly involved.
The decision
Mr Justice Picken found in favour of Glencore and held that support for this conclusion could be found in the decision of the Court of Appeal in R (Jet2.com Ltd) v CAA [2020] QB 1027. The Judge recognised that restricting privilege to direct lawyer-client communications could create artificial distinctions, and concluded it to be "illogical" that there could be a distinction between, for example, an engagement or instruction letter that identifies the issue on which legal advice will be sought, and any preparatory communications created for the same purpose but not sent to a lawyer.
The Judge also considered that it would be illogical for legal advice privilege "not to apply to intra-client documents whose dominant purpose is to identify facts that the client proposes to communicate to a lawyer for the purpose of seeking legal advice, but where the document itself is not intended to be sent to the lawyer", and that "there can be no distinction in principle between an intra-client document which is itself intended to be communicated to a lawyer and an intra-client document which contains information that is intended to be communicated to a lawyer but the document itself is not intended to be sent".
Crucially, the Judge recognised that in the realities of the commercial context, internal 'client' discussions often form part of the process of obtaining legal advice. He also emphasised that the key consideration as to whether legal advice privilege can be asserted is the purpose for which the document is created, meaning that not every internal communication will qualify and ordinary business discussions remain disclosable. Ultimately, the ability to assert privilege depends on being able to evidence that the document was created for seeking or receiving legal advice.
Relationship with Three Rivers (No 5)
The decision in Three Rivers (No 5) has led to a narrow application of legal advice privilege, and the decision in Aabar v Glencore does not alter the narrow definition of 'client'.
Although the decision in Aabar v Glencore has widened the scope of which communications may be afforded legal advice privilege, Mr Justice Picken was careful to distinguish the issue he was required to consider to that within Three Rivers (No 5). He concluded that Three Rivers (No 5) related to communications which were between members of the client group and third parties, and/or documents which were created by third parties, whereas the issue he was considering related to communications exchanged between members of the relevant client group, or created internally by those individuals. As such, he concluded that the question of intra-client communications which were shared inside the client group had not previously been addressed by the English Courts. The Judge therefore considered the issue in Aabar v Glencore to be distinct from that in Three Rivers (No 5), and that his decision instead develops the current position, establishing that once the relevant client group has been identified, communications within that group may still attract privilege.
Practical implications
The decision in Aabar v Glencore is a welcome development of the law relating to legal advice privilege and the restrictive interpretation to that form of privilege, as applied by the Court of Appeal. Although the decision does not widen the definition of 'client' or 'client group' as established in Three Rivers (No 5), it will in theory provide increased comfort for in-house legal teams and in a wider corporate context, recognising that wider discussions outside of direct legal advice can and should still be privileged, and therefore providing greater protection for internal discussions. The ruling may strengthen privilege claims over internal fact-finding exercises and for businesses involved in regulatory investigations and litigation proceedings, and is helpful for situations in which employees have prepared information for legal teams.
The case does not reduce the importance of identifying who may constitute the 'client' for the purposes of legal advice privilege. The ruling does, however, highlight the importance of ensuring that internal communications clearly indicate when legal advice is being sought, and of ensuring that clear records are kept. The dominant purpose requirement remains critical, and businesses cannot assume that all internal communications involving legal issues are protected.
