The reach of legal advice privilege: Aabar Holdings SARL v Glencore Plc [1]

The High Court has held that legal advice privilege extends to ‘intra-client’ documents prepared for the dominant purpose of seeking legal advice, even where no lawyer is party to them.  This is significant because it expands the class of internal client group documents that can be properly withheld from disclosure.

Background

The Court of Appeal’s seminal decision in Three Rivers (No 5)[2]considered the scope of legal advice privilege in the corporate context.  It divided, for privilege purposes, a company’s employees into two categories: (i) the ‘client group’ (i.e., employees tasked with seeking and receiving legal advice on the company’s behalf); and (ii) everyone else.  The Court of Appeal held that communications between a lawyer and the client group are privileged, while communications between a lawyer and non-client group employees are not.

But what of ‘intra-client’ documents – those created and shared within the company’s client group for the dominant purpose of seeking legal advice?  Those were the documents in question, and Picken J held they too should be privileged, reasoning as follows:

1. Three Rivers (No 5), properly construed, did not consider intra-client documents prepared by the client group.  Rather, it addressed only ‘non-client’ documents (i.e., those prepared by employees outside the client group).  It was therefore not binding on the issue before the court;[3]

• While Longmore LJ stated in Three Rivers (No 5) that “legal advice privilege…could not be claimed for documents other than those passing between the client and his legal advisers”,[4] this was not “an exhaustive statement as to the scope of legal advice privilege”.[5] Instead, Longmore LJ was responding to a specific submission made in that case that privilege extended to third party communications;

• No authority before or after Three Rivers (No 5) prevents a claim to legal advice privilege over intra-client documents;[6] and

• As a result, the court was “unfettered by any binding authority” and therefore free to consider the position “as a matter of principle”.[7]

The principled reasoning

Several reasons supported his Lordship’s conclusion.[8]

First, there could be no principled distinction between an engagement letter that identifies the issue on which advice is sought, and another document created by the client which identifies the same issue.  As there is no practical difference between such documents, his Lordship held it was illogical to permit legal advice privilege to apply in one case but not the other.

Second, it is accepted that a document created after a privileged communication may evidence the substance of that communication, and is therefore itself privileged. Similarly, an intra-client document created before a privileged communication may equally evidence what will be communicated. There being no principled reason to distinguish the two, privilege should apply to the latter as well.

Third, there was no basis for any distinction between two types of intra-client document: (i) those intended to be sent to a lawyer; and (ii) those containing information intended to be conveyed to a lawyer at some point, but which are not themselves to be sent. The judgment gives the example of one member of the client group emailing another with information or thoughts in preparation for a meeting with a lawyer – a document in the second category, as the email is never intended to be communicated to the lawyer, even though its content will be.  On the claimants’ approach, documents in the first category would be privileged and those in the second would not. Picken J saw no logic in that position.

Fourth, an analogy was drawn with lawyers’ working papers.  Given they are subject to legal advice privilege, it was observed that “it is difficult to see why” a client’s working papers should not also be.  This was on the basis that, “They are the mirror image of each other and, as such, should be treated in the same way for legal advice privilege purposes”.[9]

Picken J accordingly concluded that legal advice privilege applies to intra-client documents prepared for the dominant purpose of seeking legal advice, irrespective of whether the document itself was intended to be sent to a lawyer.

Implications

The decision expands the category of documents over which privilege may be claimed in litigation involving a corporate client. Internal documents within the client group that were previously disclosable may now be withheld, provided they were created for the dominant purpose of seeking legal advice. 

For parties in proceedings that rely on their opponent’s internal communications as evidence, the decision is unwelcome. Evidence that would previously have been made available through disclosure may now be withheld, making such cases potentially more challenging.  How significant the expansion is will depend on the specific documents in each case.

For solicitors undertaking disclosure exercises for a corporate, the practical consequences are immediate.  Each intra-client document now requires an additional consideration: was it created for the dominant purpose of seeking legal advice?  That question involves an enquiry into the circumstances in which the document was created, thereby adding an element to the review that did not exist before last Thursday.  The classification of such documents will also not always be clear cut.

A further consequence is the potential for inadvertent waiver of privilege.  Should a party now disclose a document covered by privilege under Picken J’s reasoning, it may be taken to have waived privilege, with waiver potentially extending to other documents on the same subject matter.[10] 

Looking ahead

While not explicitly addressed, the judgment puts two principles in tension.  The first is legal advice privilege, which exists to enable clients to consult lawyers frankly to obtain informed legal advice.[11]  The second is the disclosure obligation, which serves the fair determination of disputes by making relevant evidence available.  Any extension of the first principle may come at the cost of the second.

The Claimants may consider that legal advice privilege did not require expansion in order to serve its purpose. While the narrow definition of ‘client’ in Three Rivers (No 5) has attracted criticism, it may be said that the remedy lies in revisiting that definition rather than in broadening the categories of document to which privilege attaches. Picken J, however, determined that once the established carve-outs to the orthodox view were considered, there was no principled basis for denying privilege to other similar documents. On that view, the decision is less an extension of the principle than a coherent application of it.

Whether the test employed – the dominant purpose of seeking legal advice – captures only those documents his Lordship’s reasoning supports, or reaches more broadly, is a question that may attract further examination.  In any event, the practical effect may be to narrow the pool of internal corporate materials available through disclosure, a cost which certain litigants may argue they could ill afford to pay. 

Any further consideration of these questions will likely be a matter for the appellate courts, given that this decision is the latest instalment in a long-running debate about the scope of legal advice privilege in corporate contexts.  Whether this judgment represents a durable shift in approach, therefore, remains to be seen.

[1] [2026] EWHC 877 (Comm).

[2] [2003] QB 1556.

[3] See the discussion at [18] – [24] with the conclusion at [25].

[4] Three Rivers (No 5) at [21].

[5] At [33].

[6] At [46].

[7] At [52].

[8] At [53] – [61].

[9] At [60].

[10] Certain parties may also consider whether documents previously disclosed but now covered by Picken J’s reasoning may be clawed back. 

[11] See Greenough v Gaskell (1833) 1 My & K 98 at 101-103 as cited at [27] of the judgment.