High Court: Legal Advice Privilege Not Limited To Client-lawyer Communications

In Aabar Holdings S.À.R.L. & Ors v Glencore PLC & Ors [2026] EWHC 877 (Comm) the Commercial Court held that legal advice privilege is not limited to communications between a client and its lawyers.It can also extend to communications within, and documents created by, the client, provided they are for the purpose of seeking legal advice. Here we consider whether this conclusion is truly unexpected and where the judgment's practical impact is likely to be felt.

Legal advice privilege – the conventional wisdom

On a conventional definition, legal advice privilege applies to confidential communications between a client and lawyer, which are made for the dominant purpose of giving or receiving legal advice. Behind that simple definition though lie well over a century's worth of court judgments which have drawn and redrawn the precise limits of the privilege – asking, for instance, 'what is a lawyer', 'who is the client', and 'what is the ambit of legal advice'? A decision from the Commercial Court this week probed a new limit - does legal advice privilege require a communication between a client and a lawyer at all - or does it also protect internal communications within the client, and documents created within the client entity?

How the question arose

The dispute arose in relation to disclosure. The defendant argued that in giving disclosure, it was entitled to assert privilege over communications between members of the client group, which were made for the dominant purpose of seeking or receiving legal advice. The claimants meanwhile contended that legal advice privilege applied only to communications passing between the client and lawyers (though they accepted, based on previous authority, that it also extended to documents intended to be so communicated, even if they weren't; and documents which evidenced the substance of privileged communications). 

The claimants' submissions, as characterised in the judgment, focused on the Court of Appeal's judgment in Three Rivers (No.5). That seminal privilege decision confirmed that, for the purposes of privilege, 'the client' is to be defined narrowly – it does not extend to all employees of an entity, but only to those responsible for seeking and receiving legal advice on its behalf. Although this decision has come in for repeated criticism in recent years for being overly restrictive in a modern corporate environment, it remains binding unless and until the law can be revisited by the Supreme Court.

No prior authority

Having surveyed a wide range of authorities both before and after Three Rivers (No.5), Picken J concluded that "there is no authority which prevents the assertion of a claim to legal advice privilege where intra-client documents are concerned". He made the point, outlined above, that Three Rivers (No.5) was concerned with the distinction between the corporate and the narrower group of its employees who constituted the 'client' for privilege purposes. It did not concern communications within this narrowly defined client group. As such, although Three Rivers (No.5) refers to the need for a communication between client and lawyer, that was being distinguished from communications involving a non-client – which were not privileged. In the judge's view though, neither Three Rivers (No.5) or any of the other authorities cited in it or other later authorities relied on by the claimants directly considered or determined the specific point in question – the status of intra-client documents. In short, the judge concluded that while many of these authorities may have referred to privilege applying to "communications between a client and lawyer", that was not intended as a full or exhaustive statement of the law, and did not exclude the possibility that privilege could apply to intra-client communications –the point was simply not considered in Three Rivers (No.5).

A point of principle

Finding himself unfettered by previous authority, the judge went on to consider the question as a matter of principle.

• Existing caveats – the judge highlighted that even the previous authority relied on by the claimants recognises that actual communication between a client and lawyer is not always essential. For example, it is well-established that documents intended to be communicated to a lawyer may be privileged, notwithstanding that they are not in fact communicated; as are documents which are not themselves communications between a client and lawyer, but evidence legal advice. As such, there are already recognised exceptions to the need for communication between a client and lawyer.
• Illogicality – the judge considered it illogical that there should be a distinction between, for example, an intra-client communication identifying the topic on which legal advice should be sought, and the actual communication from the client to a lawyer seeking that advice – there is no practical difference between the two types, and both should be privileged.
• Client's working papers – the judge also observed that "if… a lawyer's working papers are the subject of legal advice privilege, it is difficult to see that what are, in effect, a client's working papers should not also attract such privilege. They are the mirror image of each other and, as such, should be treated in the same way for legal advice privilege purposes."

In all the circumstances, the judge concluded 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.

What is the impact of this judgment?

This is the second time in the same case that Picken J has delivered an important decision considering the application and extent of legal privilege. In December 2024, he concluded that the so-called 'shareholder rule' should no longer be applied, meaning that companies could claim privilege against shareholders in a wider range of scenarios. Indeed, in the first paragraph of this latest judgment, the judge reminds us of that fact - and of the fact that the Privy Council subsequently agreed with him.

Nonetheless, it is important to remember that, as a High Court decision, this is not binding on other courts. It remains to be seen whether the decision will be appealed and, if not, whether other courts adopt the same analysis. Therefore, unless and until the point is decided by a higher court, clients would be advised to remain cautious when preparing intra-client communications.

If the decision is followed though, this is a potentially impactful expansion of the scope of legal advice privilege, affording greater protection from disclosure to internal corporate memoranda, working papers and fact gathering in anticipation of seeking legal advice. Even so, the narrow definition of 'the client' as a result of Three Rivers (No.5) will limit the practical effect of this to communications within and documents created by those within the closely drawn client circle.

Read the original article on GowlingWLG.com

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