Briefing

London Commercial Court Confirms Legal Advice Privilege may extend to intra-client communications

In a judgment handed down in the case of Aabar Holdings SARL anors v Glencore PLC anors on 16 April 2026, Mr Justice Picken in the Commercial Court held that Legal Advice Privilege (LAP) applies to intra-client documents and communications sent between, or created by, members of the “client group” for the dominant purpose of seeking legal advice. This represents a potentially significant expansion of the previously accepted position that privileged communications needed to be between the client and its lawyer (for the dominant purpose of seeking legal advice) or certain limited category of communications that would reveal the nature and content of the legal advice. The decision is a first instance judgment and may yet be appealed, therefore, it should be considered with caution.

Overview

In a judgment handed down in the case of Aabar Holdings SARL anors v Glencore PLC anors¹ on 16 April 2026, Mr Justice Picken in the Commercial Court held that Legal Advice Privilege (LAP) applies to intra-client documents and communications sent between, or created by, members of the “client group” for the dominant purpose of seeking legal advice. This represents a potentially significant expansion of the previously accepted position that privileged communications needed to be between the client and its lawyer (for the dominant purpose of seeking legal advice) or certain limited category of communications that would reveal the nature and content of the legal advice.

The decision is a first instance judgment and may yet be appealed, therefore, it should be considered with caution.

Background: How the issue arose

The privilege dispute arose during the process of extended disclosure. On 17 November 2025, Glencore informed the claimants that it had been approaching its disclosure obligations since April 2025 on the basis that Three Rivers (No 5) was wrongly decided, treating LAP as applying to all communications made for the dominant purpose of seeking or receiving legal advice.

Following objections from the claimants, Glencore abandoned the contention that every employee should be treated as “the client” and produced 885 previously withheld documents and reproduced 290 others. However, it maintained that privilege applied to communications between members of the “client group” – even where no lawyer was party to those communications.

The claimants sought an order requiring Glencore to disclose those documents, save for those evidencing the substance of privileged communications.

The established framework

The Court of Appeal’s 2003 decision in Three Rivers District Council v Bank of England (No 5)² has long been understood as establishing that LAP attaches only to communications passing between a lawyer and the client. The “client” in a corporate context is defined narrowly as those employees specifically tasked with seeking and receiving legal advice.

On that basis, purely internal communications – even between members of the client group – fell outside LAP unless they evidenced the substance of a privileged communication or were intended (though not sent) for the lawyer. This reading had been endorsed in subsequent authorities including SFO v ENRC [2019] 1 WLR 791, Jet2.com [2020] QB 1027, Rabobank [2006] EWHC 2332, and RBS Rights Issue Litigation [2017] 1 WLR 1991.

The Court’s analysis

Three Rivers (No 5) Re-characterised

Picken J declined to make the order sought. His central finding was that Three Rivers (No 5) had never in fact been concerned with intra-client documents. The appeal concerned documents prepared by Bank of England employees outside the Bingham Inquiry Unit (BIU) – the narrow group treated as the client. All four categories of disputed document were therefore “non-client” documents.

While some documents internal to the BIU may technically have fallen within the order made at first instance, no argument addressing intra-client documents was advanced before Tomlinson J or the Court of Appeal. It would therefore be wrong to treat Three Rivers (No 5) as authority on the point.

In each case relied upon by the claimants, Picken J concluded that the decision was concerned only with non-client documents and had no bearing on intra-client communications.

The Position on Principle

Approaching the matter as one of principle, Picken J considered the position to be clear, namely that there is no principled basis for denying LAP to intra-client documents whose dominant purpose is to identify issues for legal advice or to communicate relevant facts to lawyers.

The examples given are telling: a client writing a memorandum with notes for the next day’s meeting with their lawyer; or one member of the client group emailing another with thoughts in preparation for that meeting. In both cases, the document should attract privilege regardless of whether it was itself sent or intended to be sent to the lawyer.

The court drew a compelling analogy with lawyers’ working papers, describing their privileged status as “obviously the case” and “not in dispute”. If a lawyer’s working papers attract LAP, it is difficult to see why, what are in effect a client’s working papers, should not equally do so. This lends support to a broader reading of the working papers principle at a time when some uncertainty had arisen following RBS Rights Issue Litigation³.

Further support was found in Jet2.com⁴, where Hickinbottom LJ’s reference to documents exchanged between “an employee and a co employee” was taken by Picken J to address intra-client communications and to confirm that LAP can apply to such documents where the dominant purpose threshold is satisfied.

The decision and its limits

LAP can be asserted over intra-client documents created for the dominant purpose of seeking legal advice, notwithstanding that no lawyer (whether internal or external counsel) was a party to the communication itself. It is important, however, to note what the decision does not do:

The narrow client definition survives. The Three Rivers (No 5) restriction that the “client” comprises only those employees specifically tasked with seeking and receiving legal advice remains unaffected.
The dominant purpose test remains the controlling filter. The extension of LAP to intra-client documents is not unconditional.
First instance only. The decision is not binding on other courts and there is some tension with various appellate statements, albeit Picken J’s answer is that those statements were directed at third-party communications rather than intra-client documents.

Looking ahead

Whether the LAP point in Aabar will be tested before the Court of Appeal or the Supreme Court remains to be seen. Only the Supreme Court can definitively resolve the broader Three Rivers (No 5) question concerning the definition of the “client”.

With thanks to Paddy Wheeler for his assistance in producing this article.

Footnotes