Legal advice privilege and intra client communications – England & Wales

Why should I read this?

The High Court has recharacterized the practical scope of legal advice privilege (LAP) to include intra-client communications, even where no lawyers are involved, provided the dominant purpose of the document is to seek legal advice.

The decision

The High Court’s recent decision in Aabar Holdings S.À.R.L. & ors v Glencore PLC & ors [2026] EWHC 877 (Comm) is a potentially significant development for organisations concerned about disclosure risk.  The court rejected the argument that legal advice privilege (LAP) only applies to lawyer client communications.  Instead, it held that intra client emails, notes and drafts prepared internally between individuals within organisations responsible for seeking/obtaining legal advice (defined as the “client group”) may attract privilege if they are prepared for the dominant purpose of seeking/obtaining such advice. This represents an expansion of the scope of the protection afforded by LAP.

The judgment re-characterises the practical impact of the Court of Appeal’s decision in Three Rivers (No 5) (the leading authority on LAP which established the lawyer-client test and which has been criticised as being too restrictive).

The decision may pave the way for greater protection for organisations when preparing documents internally for the purposes of seeking legal advice.  However, as a High Court decision, it is susceptible to challenge and Three Rivers (No 5) remains the prevailing authority on LAP.  Organisations should therefore proceed with caution.

The court’s reasoning

The application before the High Court arose from a dispute regarding disclosure of relevant documents.  The claimants argued that Glencore was wrongly asserting legal advice privilege over internal communications within its client group where no lawyer was involved, contending that privilege only applies to lawyer–client communications (or documents evidencing or intended for such communications).

Picken J, the presiding judge, carefully analysed the applicable authorities (including the leading Court of Appeal authority for decades in Three Rivers No 5)) and ultimately rejected the claimants’ arguments, finding that:

• There was no authority directly addressing the specific question of whether LAP can apply to intra client documents.  The judge held that Three Rivers (No 5) and subsequent cases were concerned with documents created by non client employees or third parties, not with communications within a properly constituted client group.
• Three Rivers (No 5) therefore does not preclude privilege for intra client communications.  Picken J held that on a proper reading, it does not decide (still less prohibit) the application of LAP to documents exchanged within the client group for the dominant purpose of seeking legal advice.
• LAP is not confined to lawyer–client exchanges.  While such communications are the core category, the law also recognises that privilege can extend to other documents forming part of the process of seeking legal advice (including intra-client documents subject to the dominant purpose test).  As Picken J quotes at paragraph 56 of his judgment, from a leading textbook on privilege (with which he subsequently agrees):
  “If a lawyer’s working papers are privileged, why should his/her client’s working papers not also be privileged, provided they are sufficiently connected with the actual lawyer-client communications?”
• The dominant purpose test remains critical.  Documents created for mixed legal and commercial purposes will not automatically be protected

The court therefore concluded that Glencore was entitled, as a matter of law, to maintain claims to LAP over qualifying intra client documents. What should I do?

To maximise privilege protection and reduce disclosure risk, organisations should:

• Identify the “client group” clearly: if litigation is contemplated, identify who within the organisation is authorised to seek legal advice and ensure internal communications (to the extent possible) stay within that group.
• Separate legal and commercial discussions: mixed purpose communications risk losing privilege. Where possible, keep documents created in preparation for obtaining legal advice separate.
• Be clear about purpose: when preparing internal notes, emails or drafts, make sure the purpose is to seek or prepare for legal advice, rather than such documents being purely commercial in nature (it may be prudent to record the purpose in the document itself wherever possible).
• Take care when labelling documents (but don’t rely on those labels): mark documents “privileged and confidential – prepared for the purpose of seeking legal advice”, but remember purpose and substance matters more than headings.
• Train teams involved in sensitive matters: ensure senior executives and legal adjacent teams understand how LAP can apply to internal working documents.
• Review disclosure strategies early: this judgment may strengthen arguments for withholding intra client material, but privilege still needs to be justified on a document by document basis.

What else do I need to know about legal advice privilege?

This decision arguably reflects a more realistic, modern approach to how large organisations operate, and perhaps acknowledges that legal advice is rarely sought in a vacuum and often requires internal investigation, discussion and preparation before external lawyers can advise.

However, the decision does not attempt to overturn Three Rivers (No 5), which remains the leading authority on LAP.  In particular, Aabar does not abolish the dominant purpose test, and does not expand on the definition of “client group” (which remains narrowly drawn).  Organisations should therefore proceed with caution: internal documents prepared outside of its designated client group, or for mixed legal and commercial reasons will still be vulnerable to disclosure.

Looking ahead, this judgment may influence future appellate courts and strengthen pressure for a fuller reconsideration of Three Rivers (No 5).  Until then, there is likely to be uncertainty as to both the durability of this decision, and also its practical implications, which will persist until the issue of LAP returns to the appellate courts.

In the meantime, Aabar nevertheless provides helpful authority for organisations seeking to protect legitimate internal preparatory work (to the extent it satisfies the dominant-purpose test and remains within the narrowly defined client group) from disclosure.

This article was co-authored by Dan Jones

Further reading on this topic

Legal Advice Privilege and internal investigations - getting the basics right

Passport to disclosure and privilege

AI, Legal Advice and Privilege