Background

Legal advice privilege was traditionally understood to protect only confidential communications passing directly between a lawyer and client for the dominant purpose of giving or receiving legal advice. In Aabar Holdings S.À.R.L. & Ors v. Glencore PLC & Ors [2026] EWHC 877 (Comm), the Commercial Court has now held otherwise.

These proceedings form part of a group of securities claims brought against Glencore PLC, and the litigation has already proved fertile ground for privilege disputes. In a prior ruling in the same proceedings¹,  Picken J concluded that the “Shareholder Rule” no longer existed (see our 2024 article). This was a position the Privy Council later endorsed² (explored in our 2025 article). The present judgment arises from a separate but related disagreement about the reach of legal advice privilege.

During disclosure, it emerged that Glencore had been withholding documents on the basis that Three Rivers (No 5)³ was wrongly decided. In this case, the Court of Appeal held that, in a corporate setting, the “client” for the purposes of legal advice privilege is only the specific individuals authorised to seek and receive legal advice on an organisation’s behalf, and that employees outside of this client group could not claim legal advice privilege over their communications. Glencore had been treating legal advice privilege as applying more widely to all communications made for the dominant purpose of seeking or receiving legal advice.

Glencore subsequently accepted the Three Rivers (No 5) constraints on who constitutes “the client”, but continued to assert privilege over communications which were not between client and lawyer but exchanged solely within the designated “client group” (as defined in Three Rivers (No 5)). The claimants sought an order compelling disclosure of those communications, contending that Three Rivers (No 5) confines legal advice privilege to lawyer-client communications and no authority extends it further.

Decision

Picken J dismissed the claimants’ application and held 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. His reasoning rested on three grounds:

1. Three Rivers (No 5) did not decide the intra-client point
   
   On a close reading, Picken J found that the Court of Appeal in Three Rivers (No 5) was concerned only with “non-client” documents, and not with “client” documents (including, therefore, “intra-client” documents). Although intra-client documents were involved in that case and appeared in the order made by the court (and upheld by the Court of Appeal in Three Rivers (No 6), neither party had argued the intra-client point, and neither judgment contained reasoning directed at it; Three Rivers (No 5) should therefore not be treated as authority on a question it did not address. 

2. No subsequent authority foreclosed the question
   
   Picken J found that no subsequent authority had decided the intra-client point. The House of Lords in Three Rivers (No 6)⁴ expressly declined to address the issue; SFO v. ENRC⁵ and In re RBS Rights Litigation⁶ were distinguished as both were confined to non-client communications. Critically, in R (Jet2.com Ltd) v. CAA [2020] QB 1027,⁷  Picken J held that Hickinbottom LJ accepted that intra-client communications could attract privilege where the dominant purpose was to seek legal advice. Accordingly, Picken J concluded that no binding authority prevented the assertion of legal advice privilege over intra-client documents, leaving him free to consider the question as a matter of principle.

3. Denying privilege to intra-client documents would be unprincipled
   
   Picken J held that there is no logical basis for withholding privilege from intra-client documents whose dominant purpose is to seek legal advice. He reasoned that there is no principled distinction between an engagement letter identifying the issues on which advice will be sought and any other internal client document that does the same thing; denying privilege to the latter while protecting the former would be “illogical”. Picken J drew an analogy with lawyers’ working papers, which are uncontroversially privileged: a client’s working papers that form part of the same process of seeking legal advice are, in the court’s view, “the mirror image of each other” and should be treated in the same way for legal advice privilege purposes

Practical implications

A significant but not yet settled development: The decision provides the clearest judicial endorsement to date that legal advice privilege is not confined to documents that pass between lawyer and client. Companies with complex internal structures, where the process of seeking legal advice inevitably involves preparatory discussions and coordination among members of the client team, can draw comfort from the reasoning.

However, this is a first instance judgment of the High Court. It is not binding on the Court of Appeal and sits in some tension with broad characterisations of legal advice privilege in the appellate authorities, even if Picken J’s analysis demonstrates that those characterisations were not directed at the intra-client question. It remains to be seen whether this decision will be the final word on the matter, as it may be subject to appeal or further judicial consideration in future cases. Until the issue is addressed at the appellate level, a degree of caution remains appropriate.

The core constraints of Three Rivers (No 5) remain intact: The judgment does not disturb the settled rule that employees outside the designated client group cannot claim privilege over their communications with the client’s lawyers. The decision concerns only documents passing between, or created by, members of the client group itself. Companies must therefore continue to identify and designate the individuals who are authorised to seek and receive legal advice on behalf of the entity (the “client group”) and should recognise that communications between non-client employees and external lawyers remain vulnerable to disclosure.

The dominant purpose test is the critical safeguard: Whether or not a court ultimately adopts Picken J’s analysis, the judgment reinforces that the dominant purpose of a document is the decisive inquiry in any privilege claim. Documents created for mixed purposes, for instance communications that serve both commercial and legal objectives, will not attract privilege unless the legal purpose predominates. Companies should ensure that internal communications intended to form part of the process of obtaining legal advice are clearly framed as such, and that commercial and operational objectives are addressed separately where possible.

Steps clients can take now: In light of this decision, companies may wish to review their existing protocols for handling privileged communications, including the clarity with which client groups are defined and the discipline with which internal communications are prepared when legal advice is being sought. Clear documentation of the purpose of intra-client communications, for example, through labelling or contextual framing that identifies the document as part of the process of seeking legal advice, will be important in supporting privilege claims, whether under the framework endorsed in this decision or under the more restrictive approach that other courts might prefer to take.

1. [2024] EWHC 3046 (Comm).

2. Jardine Strategic Limited v. Oasis Investments II Master Fund Ltd (No 2) [2025] UKPC 34.

3. Three Rivers (No 5) [2003] QB 1556.

4. Three Rivers (No 6) [2004] UKHL 48.

5. SFO v. ENRC [2018] EWCA Civ 2006.

6. In re RBS Rights Litigation [2016] EWHC 3161 (Ch).

7. R (Jet2.com Ltd) v. CAA [2020] EWCA Civ 35.

Client Alert 2026-093