On 16 April 2026, the High Court handed down judgment in Aabar Holdings S.A.R.L. & Ors v Glencore PLC & Ors [2026] EWHC 877 (Comm) confirming that purely internal client communications and documents may attract legal advice privilege.
In his judgment, Mr Justice Picken confirmed that the Court of Appeal’s decision in Three Rivers (No. 5), which has been the leading authority on legal advice privilege for over 20 years, does not prevent communications and documents created within an “intra-client” group from attracting legal advice privilege, so long as they satisfy the “dominant purpose” test. This is arguably a re-characterisation of the traditional view that only communications or documents between a lawyer and a client (or which disclose the content of legal advice between a lawyer and a client) can attract legal advice privilege.
Background
The judgment is part of the ongoing proceedings brought under s90 FSMA against Glencore by its shareholders and is the second important development on the law of privilege to arise out of the litigation after Picken J previously overturned the so-called “Shareholder Rule” (see our update here).
Legal advice privilege is a form of legal professional privilege which enables a party to withhold from disclosure to other parties or to the Court confidential communications and documents that were created for the “dominant purpose” of seeking or obtaining legal advice.
In the present dispute:
- Aabar Holdings and the other Claimants raised concerns about Glencore's approach to Extended Disclosure. Glencore had withheld intra-client communications from disclosure on the basis that Three Rivers (No 5) was wrongly decided insofar as it is understood to limit legal advice privilege to communications between a corporation's lawyers and the employees tasked with seeking and receiving that advice.
- The Claimants’ case was that Glencore’s approach was inconsistent with Three Rivers (No 5) by: (i) treating every employee as “the client”; and (ii) not confining privilege to lawyer-client communications (or those disclosing legal advice).
- Glencore subsequently conceded that not every employee should be treated as “the client” and withdrew its assertion that Three Rivers (No 5) was wrongly decided, but maintained that internal communications within the “client group” could nonetheless attract legal advice privilege.
- The Claimants submitted that Glencore should be ordered to disclose all documents it had withheld on this basis, except where a document either evidenced the substance of a privileged communication or was an “inchoate communication” (i.e. intended as a communication between a client and solicitor but not actually communicated).
The decision
In his judgment, Picken J:
- Examined the ratio in Three Rivers (No 5) and the various authorities which came before and after it and found that nothing prevented legal advice privilege from applying to intra-client communications and documents, provided the dominant purpose was to seek legal advice.
- Held that the key driver for the Court of Appeal’s decision in Three Rivers (No 5) was the distinction between members of the client group (which in that case constituted members of the specific “Bingham Inquiry Unit”, but not wider employees of the Bank of England) and those outside it, which explained the Court’s finding that legal advice privilege could not arise where documents were not within the client group. The question of whether intra-client documents could attract legal advice privilege had not been addressed in Three Rivers (No 5).
- Rejected the Claimants’ argument in favour of a narrow application of legal advice privilege which was confined to communications between lawyers and their clients. The Claimants’ case relied on an incorrect reading of Three Rivers (No 5) as precluding legal advice privilege in respect of intra-client documents. Picken J found that there was no justification for treating intra-client documents which had been created as part of the process of seeking legal advice any differently from other similar documents. By way of example, he noted that there is no distinction in principle between an engagement letter and any other client document which identifies the issue on which legal advice will be sought.
Why this matters
This decision potentially represents a significant development in the law of legal advice privilege. Whilst Three Rivers (No 5) has been criticised by some authorities, in practice it has been understood that legal advice privilege can only attach to communications between a lawyer and a client or documents which evidence the substance of those communications. This judgment appears to have expanded this principle to include purely internal client documents which satisfy the dominant purpose test.
However, the decision must be treated with some caution. As a first instance judgment, it could be departed from by other High Court judges or challenged on appeal.
Authors: Sue Millar, Rebecca Garrick, Dylan Milner-Stopps, Inez Farrands
