High Court reviews the scope of legal advice privilege

This article follows the handing down on 16 April 2026 of the High Court’s judgment in Aabar Holdings S.A.R.L. & Others v Glencore Plc & Others [2026] EWHC 877 (Comm), which arguably broadens the scope of legal advice privilege beyond the previously understood orthodoxy. The Court confirmed that legal advice privilege can be asserted over intra-client documents which are not communications with a lawyer.

Background

A dispute arose concerning the extent to which the First Defendant was entitled to claim legal advice privilege over internal communications and documents.

The First Defendant initially approached its disclosure in the litigation on the basis that the (much maligned) decision in Three Rivers No 5 [2003] QB 1556 was wrong and that legal advice privilege should apply to all communications made for the dominant purpose of seeking or receiving legal advice, regardless of who those communications were between. This approach was ultimately not pursued, but the First Defendant continued to assert that Three Rivers No 5 did not prevent intra-client documents (i.e. internal communications between, or documents created by, employees who fall within the ‘client group’) from being covered by legal advice privilege. The concept of a ‘client group’ originates from the Court of Appeal’s decision in Three Rivers No 5, being a defined group of employees authorised to seek and receive legal advice on behalf of the organisation.

The Claimants argued that it is a basic tenet of legal advice privilege that it applies only to communications between lawyer and client and the only exception to this rule is where the disclosure of a document would reveal the substance of the legal advice or the document was intended to be communicated to a lawyer but ultimately was not.

Decision

In a potentially ground-breaking decision, Mr Justice Picken ultimately rejected the Claimants’ argument and concluded that “that the true position, on the authorities, is that legal advice privilege applies to any intra-client document which is sent between or created by members of the “client group” for the dominant purpose of seeking legal advice.”

Accordingly, internal documents passing between members of an organisation’s client group will attract legal advice privilege where their purpose is to seek legal advice, even if such advice has not yet been sought or received and even if the lawyer is not party to the communications.

Following an extensive review of the authorities, Picken J distinguished Three Rivers No 5 on the basis that it was concerned with – and confined to – documents and communications involving individuals outside the client group (i.e. including third parties and employees who were not part of that group). By contrast, the issue in the present case was the extent to which legal advice privilege applies to internal communications between members of the client group and documents created by such members.

Picken J held that as a matter of principle, there was no justification for distinguishing between documents that communicate legal advice and documents whose dominant purpose is to identify issues or facts which the client proposes to communicate to a lawyer in order to seek legal advice. On that basis, an intra-client document may attract legal privilege even where it is not sent – or intended to be sent – to a lawyer.

This principle also extends to a client’s working papers, such as notes prepared by a client in advance of a meeting with their lawyer. As Picken J explained “there can be no justification for treating intra-client documents, created as part of the process of seeking legal advice or assistance and/or for which the intention to communicate with the lawyer accounts for the existence of the document, as not attracting legal advice privilege in circumstances where that privilege is available in relation to other documents that are materially similar.” The “materially similar” documents to which he referred were a lawyer’s working papers.

Our view

This judgment adopts a pragmatic approach to the application of legal advice privilege. It confirms – on what appears to be a novel basis – that internal communications and documents created within the client group may attract legal advice privilege even where no lawyers are involved. This includes documents prepared to collate or identify issues or facts for the purpose of seeking legal advice, provided that is their dominant purpose. Notably, this may apply even where the documents were never intended to be sent to a lawyer or no lawyer has yet been instructed, provided that the dominant purpose of the communication or document is the obtaining of legal advice.

In light of this new authority, it is all the more important for organisations to be clear on who are the members of the ‘client group’, to document that wherever possible and to ensure to the extent practicable that the purpose for which communications and documents are created – in particular their connection with obtaining legal advice – is identifiable.

This will be of particular relevance in the classic internal investigation scenario – before any adversarial proceedings are in contemplation which might facilitate a claim for litigation privilege – in which Three Rivers (No 5) has caused so many difficulties in terms of limiting the scope of legal advice privilege. The Aabar judgment does not allow for the possibility of communications with individuals, including employees, who are outside the client group to be covered by legal advice privilege (a decision to that effect could only be made by the Supreme Court, which many commentators consider to be long overdue), but it does mean that there ought to be more protection for communications within the client group in those initial stages of investigations. Those protections could potentially be wide-ranging – if dealing with a large or complex issue which is always likely to need some form of legal advice, conceivably it could be said of almost all intra-client group investigatory documentation that the "dominant purpose is to identify an issue on which the client proposes to seek advice from a lawyer but at a time at which advice has not yet been sought”.