In brief
- In Aabar Holdings SARL v Glencore PLC [2026] EWHC 877 (Comm), Mr Justice Picken held that legal advice privilege extends to intra-client documents and communications - i.e. those exchanged between members of the designated client group - provided their dominant purpose is to seek legal advice.
- A lawyer need not be a recipient, or even a potential recipient.
- The decision has important implications for companies conducting internal investigations in criminal and regulatory contexts.
What was the background?
For two decades, Three Rivers (No 5) [2003] QB 1556 has been the source of a persistent, and widely criticised, restriction on legal advice privilege in the corporate context. Privilege is confined to communications between lawyers and only those employees authorised to seek and receive legal advice on the company's behalf. Every other employee is treated as a third party. In practice, a large corporation can generate privileged communications only through a small, defined group - often a board sub-committee or dedicated steering group. The Court of Appeal has subsequently doubted the correctness of Three Rivers (No 5) on two separate occasions. However, it has accepted that it remains bound by the decision, which can only be overturned by the Supreme Court.
What has not been so clear is the status of intra-client communications and documents in a corporate context. Whilst the existing authorities support the principle that privilege will extend to any such items which reveal the substance of legal advice or other privileged communications (e.g. an intra-client discussion about legal advice received), there had, prior to Aabar v Glencore, been some uncertainty about those which do not reveal privileged information but are nevertheless created/exchanged for the dominant purpose of seeking legal advice.
In Aabar v Glencore the privileged status of these intra-client communications and documents was specifically considered by Mr Justice Picken in response to an application for production of documents made by Aabar. Aabar had applied for the disclosure of documents following correspondence with Glencore in which Glencore disclosed that it had been withholding as privileged intra-client communications prepared for the purpose of obtaining legal advice. In doing so, Glencore had adopted a broader approach to legal advice privilege than Three Rivers (No 5) has been traditionally held to permit, which Aabar sought to challenge.
What did the case decide?
Mr Justice Picken carried out a comprehensive review of the relevant authorities and concluded that neither Three Rivers (No 5) nor any of the other authorities specifically addressed this point. In holding that legal advice privilege extends to intra-client communications and documents whose dominant purpose is to seek legal advice, he drew no distinction between those which reveal the substance of legal advice and those which do not.
Such a conclusion was, with respect, a brave decision based on the case law. It clearly would have been open, and significantly easier, for Mr Justice Picken to come to the opposite conclusion. However, in finding a way through the authorities, the judge was able to address the question of intra-client privilege based on first principles.
In support of his reasoning, he considered a number of examples, including:
- The judge drew an analogy with lawyers' working papers. It is settled that a lawyer's own notes relating to the matter on which they are advising can attract legal advice privilege, even though they do not form part of a communication with their client. A client's preparatory papers are, as the judge put it, the "mirror image"; he concluded that there can be no principled basis for treating them differently.
- The judge considered the example of a client writing notes before a first meeting with a lawyer, or one member of the client group, who will not be attending the meeting, emailing another member of the group with preparatory thoughts for that meeting. Both should, he reasoned, attract privilege on any sensible analysis.
- The judge reasoned that it would make no sense 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.
When considered in this way, the principled arguments are, on analysis, difficult to resist.
What are the implications?
For those advising companies in criminal or regulatory investigations, this is an important decision. The internal client group will typically exchange emails identifying concerns, compiling facts and chronologies, and formulating the key questions, without necessarily involving their legal advisers. In an internal investigation, there may be even more material exchanged between members of the client group, who will often form part of a dedicated investigation committee tasked with making key decisions. Under the conventional reading of Three Rivers (No 5), much of that preparatory work was potentially vulnerable to disclosure or compelled production. Under this decision, such communications can attract privilege - provided the dominant purpose is seeking legal advice.
Two points are worth keeping in mind. The narrow definition of the client group under Three Rivers (No 5) remains binding; intra-client privilege is not a licence for every employee to generate protected documents. And this is a first-instance decision: the case proceeds to trial in October 2026, and an appeal remains possible. In the meantime, practitioners conducting internal investigations or advising corporates on criminal or regulatory issues would be well served by ensuring that the legal purpose of intra-client communications is clearly understood from the outset and that communications with those outside the client group are kept to a minimum.