In Aabar Holdings S.à.r.l. & Ors v Glencore Plc [2026] EWHC 877 (Comm), the Commercial Court (Picken J) has provided important clarification on the scope of legal advice privilege in the corporate context. The Court held that legal advice privilege is capable of extending to intra-client communications, that is communications between members of a corporate “client group” or documents created by them, even where no lawyer is a party to the communication, provided the document was created for the dominant purpose of seeking legal advice.

The judgment addresses a long-standing area of uncertainty following the decision in Three Rivers (No 5) and corrects the tendency to treat that case as laying down a general principle that legal advice privilege is confined to only lawyer-client communications, with a narrow definition of who the “client” is for these purposes.

Background

The issue arose in the context of extended disclosure in complex securities litigation brought against Glencore. It followed an earlier judgment in the same proceedings in which Picken J held that the so-called “Shareholder Rule” no longer forms part of English law [2024] EWHC 3046 (Comm).

In the disclosure exercise, Glencore asserted legal advice privilege over certain internal documents comprising communications between members of its designated client group, even where no lawyer was a party to the communication. The claimants objected, contending that, following Three Rivers, legal advice privilege could only attach to communications between lawyer and client (or documents evidencing such communications) and this was subject to very limited exceptions.

The ‘Client Group’

An important concept underlying the dispute and decision of the Court is the concept of the “client group”.  In the corporate context, legal advice privilege does not attach to communications involving every employee of the company. Following Three Rivers, English law adopted a narrow concept of the “client” for the purpose of attaching privilege. The client group is limited to those individuals authorised to seek and receive legal advice on the company’s behalf. Communications involving employees outside the client group are generally treated as third party, and do not attract legal advice privilege.

Aabar does not disturb that restrictive definition. The issue for the Court was not who constituted Glencore’s client group, but whether communications taking place wholly within that group could attract legal advice privilege.

The Issue

The central question for the Court was whether legal professional privilege can apply to “intra-client” documents, namely:

1. documents exchanged between members of the authorised client group; or
2. created internally by a member of that group

where no lawyer is involved in the communication, but the document was created for the dominant purpose of seeking legal advice.

The Decision

Picken J rejected the claimants’ arguments and upheld Glencore’s position.

The Court held that:

• Three Rivers was not concerned with intra-client documents, but with documents created by employees that were outside the relevant client group, who were treated as third parties for legal advice privilege.
• Nothing in Three Rivers or subsequent authority prevented the position advanced by Glencore that legal advice privilege could attach to documents created within the client group for the dominant purpose of seeking legal advice.
• Appellate authorities using the phrasing “attaches to communications between lawyer and client” should not be considered an exhaustive definition on the scope of legal advice privilege.
• As a matter of principle, it would be illogical and unworkable if legal advice privilege protected lawyers’ working papers, drafts of communications to lawyers, or internal dissemination of legal advice, but failed to protect the client’s own internal working papers created as part of the advice seeking process.

Accordingly, the Court 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”.

Re-Examining Three Rivers (No 5)

A substantial portion of the judgment is devoted to a detailed analysis of the Three Rivers decision and those which followed and relied on it.

The Court emphasised that Three Rivers has frequently been read more broadly than its reasoning supports. Properly understood, the case addressed whether legal advice privilege extended to documents created by Bank of England employees outside the ‘client group’. It did not decide whether legal advice privilege can apply to documents created entirely within the ‘client group’. Later cases cited in support of a narrow approach: SFO v ENRC, Jet2.com and RBS Rights Issue Litigation were also not concerned with only intra-client group documents. Against that background Picken J concluded there is no binding authority compelling the restrictive approach sought by the claimants.

What types of documents may be covered?

The decision does not seek to exhaustively define the boundaries of what may be covered by intra-client group legal advice privilege. Such an assessment will be required on a case-by-case basis. It does provide some guidance on the types of documents which may fall within its scope:

• Internal documents identifying legal issues on which advice will be sought, even before lawyers are instructed;
• Internal memoranda or communications gathering facts intended to be conveyed to lawyers as part of seeking advice, even if the document itself is not sent to the lawyer;
• Client “working papers” created as part of analysing or preparing to seek legal advice, which the Court treated as practically the same thing as lawyers’ working papers.

The critical question in each case remains, why was the document created and was it for the dominant purpose of seeking legal advice.

Practical Implications

For corporate clients and those managing disclosure exercises, the decision has several practical consequences:

• Structuring of the advice seeking process – the decision reinforces that the relevant question is how a client approaches the task of obtaining legal advice. Clients who operate in a clearly defined client group, and act within that group to gather the facts and prepare for legal advice are in a materially stronger position than those with varied and uncontrolled internal communications, with no structured client group.
• Narrow Disclosure Disputes – Parties can be expected to shift their focus in disputes about disclosure to a fact specific privilege assessment examining document by document to assess whether a communication was genuinely intra-client and for the dominant purpose of seeking legal advice.
• Internal investigation – preparatory documents created by the client group to identify issues, structure factual investigations and prepare lines of enquiry may fall within legal advice privilege where the dominant purpose is to obtain legal advice. A distinction will need to be made with fact finding and compliance exercises.
• Disciplined internal communications – the decision highlights the importance of the defined client group and its role in the determination of privilege. Over circulation, inclusion of additional employees and mixing legal and commercial correspondence may undermine any privilege claim.

Conclusion

Aabar Holdings v Glencore brings needed clarity to the scope of legal advice privilege by correcting an over-extended reading of Three Rivers. It confirms that English Law recognises the practical reality that corporate clients must often think, analyse and prepare internally before approaching their lawyers for advice and while receiving and implementing that advice. Now it is clear those steps may properly attract legal advice privilege where they form part of the advice-seeking process.