The Application of Legal Advice Privilege to Intra-Client Documents

In Aabar Holdings S.à.r.l. & Ors v. Glencore Plc [2026] EWHC 877 (Comm), the Commercial Court has confirmed that legal advice privilege applies to any “intra-client” document that is sent between or created by members of the “client group” for the dominant purpose of seeking legal advice.

This judgment is the second important privilege decision in these proceedings following an earlier decision by Mr. Justice Picken¹, which confirmed that the so-called shareholder rule (i.e., that a company cannot claim privilege against its own shareholders, save for documents that came into existence in connection with hostile litigation between the company and shareholder) does not exist under English law.

Legal Advice Privilege

Under English law, legal advice privilege applies to confidential communications between a client and its lawyer for the dominant purpose of seeking or giving legal advice. However, an actual client-lawyer communication is not in fact required in all circumstances, and legal advice privilege may extend to other types of confidential communications and documentation that do not pass directly between a client and lawyer but nonetheless are made as part of the process of seeking or giving legal advice ― e.g., a lawyer’s internal working papers if the same would reveal the trend of advice being sought or given.

Importantly, however, the client for the purposes of legal advice privilege is different from the client as a legal entity. Following the Court of Appeal decision in Three Rivers District Council v. Bank of England (No. 5) [2003] QB 1556, the client for the purpose of legal advice privilege is narrowly defined and consists only of those employees or officers authorised to seek and receive legal advice from lawyers (i.e., the client group). As such, communications between lawyers and members of the client group are privileged, but communications between lawyers and employees/officers outside the client group, those not authorised to seek and receive legal advice from lawyers, do not attract legal advice privilege.

The Dispute on Privilege

Glencore had informed the claimants in late 2025 that in giving its final tranche of disclosure, it had been approaching its disclosure obligations in all tranches on the basis that it was entitled to assert legal advice privilege over intra-client documents (i.e., internal communications between members of the client group and/or internal documents created by members of the client group).

The claimants’ position was that Glencore should be ordered to produce all intra-client documents, save for those which disclosed the substance of privileged client-lawyer communications or were intended to be a client-lawyer communication but were not in fact sent. In doing so, the claimants sought to rely on Three Rivers (No. 5) as authority for the proposition that legal advice privilege could not be claimed for documents other than those passing between the client group and lawyer.

The Decision

Having considered the relevant authorities both before and after Three Rivers (No. 5), the judge concluded that there was no authority that prevented the assertion of a claim to legal advice privilege where intra-client documents are concerned. In particular, on a proper reading, Three Rivers (No. 5) was not concerned with the issue of intra-client documents; rather, it was concerned with communications outside the client group.

Moreover, the judge considered that, as a matter of principle, there could be no justification for legal advice privilege to not apply to intra-client documents created as part of the process of seeking legal advice and/or for which the intention to communicate with the lawyer accounted for the existence of that document in circumstances where that privilege is available in relation to other documents that are materially similar. Among other things, the judge drew on Glencore’s observation that if a lawyer’s working papers are the subject of legal advice privilege, it was difficult to see why what are, in effect, a client’s working papers should not also attract such privilege being “the mirror image of each other.” Furthermore, the judge considered the Court of Appeal decision in R (Jet2.com Ltd) v. CAA [2020] QB 1027 provided support for this conclusion.

Accordingly, the judge concluded that Glencore was entitled to assert legal advice privilege in respect of intra-client documents, provided that those documents were created with the dominant purpose of seeking legal advice.

Implications and Best Practice

The judgment is significant in clarifying that intra-client documents sent between or created by members of the client group for the dominant purpose of seeking legal advice are subject to legal advice privilege. This therefore covers the following:

1. Internal communications or internal documents identifying an issue on which legal advice will be sought, even if advice has not yet been sought from a lawyer. This may include a draft email or draft document that members of the client group created setting out legal issues for consideration that have yet to be shared with lawyers.
2. Internal communications or internal documents whose dominant purpose is to identify facts 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. This may include an internal note a member of the client group prepared for a meeting with lawyers or an internal email between members of the client group providing information or thoughts ahead of a meeting with lawyers.

The judgment provides useful clarity on the application of legal advice privilege to intra-client documents.

However, unless (and until) an appropriate case reaches the Supreme Court resulting in a review of the Three Rivers (No. 5) decision, where the client is a corporate entity or large organisation, it is only the small group of individuals such as a board of directors, subcommittee, steering group, or some other identifiable group of delegated individuals employed by that entity and who are authorised to seek legal advice on its behalf that are the client and can engage in protected communications with the entity’s lawyers under legal advice privilege.

Accordingly, best practice remains for corporate entities to consider at the outset of a matter the membership of the client group and ideally record who forms part of that group of individuals. The corporate entity should also review the constitution of the client group as the matter continues and record any changes. Failure to identify the client group properly may result in legal advice privilege not attaching to what would otherwise be intra-client documents or client-lawyer communications.

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1. ^[1] Aabar Holdings S.á.r.l. v. Glencore Plc [2024] EWHC 3046 (Comm) ↩

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