Aabar v Glencore: legal advice privilege and “intra-client documents”

In this recent judgment in the case of Aabar Holdings S.À.R.L. & Ors v Glencore plc & Ors [2026] EWHC 877 (Comm), the High Court considered the scope of legal advice privilege. The Court ultimately held that legal advice privilege can extend beyond the previously understood context of lawyer/client communications to cover purely intra-client documents, provided that those documents were created with the dominant purpose of seeking legal advice.

Background

The issue arose in the context of a disclosure exercise in substantial securities litigation pursuant to s. 90 and s. 90A of the Financial Services and Markets Act 2000 (“FSMA”). Glencore, one of the defendants, had asserted privilege over a set of “intra‑client documents”. These were internal communications within the client group and client‑created documents, not involving lawyers, which were said to have been prepared for the dominant purpose of seeking legal advice.

Initially, Glencore had stated every employee could be considered part of the client group, but subsequently shifted position to contend it was “entitled to assert privilege over communications which are not between client and lawyer but are between members of the “client group” (as defined in Three Rivers (No 5))”. The Court of Appeal’s previous decision in Three Rivers (No 5) makes it clear that the ‘client group’ for legal advice privilege purposes is only those requesting or acquiring legal advice and this definition was not contested by Glencore.

The claimants argued that legal advice privilege did not attach to intra-client documents unless they: (i) disclosed the substance of lawyer/client communications; or (ii) were drafts intended for the lawyers.

Decision

Picken J held that the case of Three Rivers (No. 5) [2003] QC 1556, which had been the focus of much of the Claimants’ submissions, was not concerned with intra-client communications and nothing in that decision should be taken as restricting the scope of legal advice privilege to instances where the documents under consideration are lawyer/client communications.  Further, there was no principled reason to deny privilege to intra‑client documents created with the dominant purpose of seeking legal advice.

He reasoned that it would be illogical to treat an engagement or instruction letter identifying issues for advice as privileged, but deny privilege to an internal note or email that does the same thing simply because it is not addressed to the lawyer. Likewise, the judge found no real distinction between a memo drafted by a client intended to be sent to external lawyers, and an internal client memo that captured the same information but used to brief the lawyers orally. Picken J described them as the “mirror image” of each other and held that they should be treated in the same way for privilege purposes. Other practical examples the Court noted included a client’s own note written the day before a first meeting with lawyers, or an email from one client‑group member to another collecting information and views to be passed to the lawyers.

The Court therefore rejected the claimants’ restrictive formulation and accepted that a broader category of intra‑client documents can be privileged, so long as the dominant purpose test is satisfied.

Comment

The judgment boils down to a straightforward finding: internal workstreams set up to prepare for and obtain legal advice can, if properly structured, attract legal advice privilege.

That said, in the event of a challenge, the onus will be on any party asserting privilege to evidence that:

• the communications were within the client group, as communications between the client group and other employees will not be privileged; and
• the communications were for the dominant purpose of seeking legal advice (the “dominant purpose test")

In practice, the dominant purpose test can be a difficult concept to pin down. If the dominant purpose of an internal document within the client group is to seek legal advice (for example, by identifying issues or pulling together facts for lawyers), privilege can attach. If the dominant purpose is instead commercial, operational or PR‑driven, the fact that legal advice is somewhere in the background will not be enough. It can increasingly be difficult to draw the line where the communications have been made in the ordinary course of business and serve various purposes.

This leaves room for opposing parties to advocate for their own interpretation of any document which is the subject of a privilege dispute. This ambiguity was previously tempered by the (incorrect) assumption that in order to attract legal advice privilege communications must be with a lawyer – whether external or internal. The courts have previously acknowledged that this could lead to difficult marginal cases where the internal lawyer party to the communications also exercises different commercial roles. In confirming that legal advice privilege can be extended to communications purely within a client group, absent any lawyers, the judgment has heightened the importance of the dominant purpose test, whose application in such lawyer-free communications may be even more challenging.