On 16 April 2026, Mr Justice Picken gave a judgment in Aabar Holdings S.À.R.L. & Others v Glencore plc & Others [2026] EWHC 877 (Comm) that impacts upon the practical scope of legal advice privilege for corporate clients. The question was whether legal advice privilege can apply to internal communications between members of the 'client group' and/or documents created by a member of the client group for the dominant purpose of taking legal advice, even where no lawyer is involved. Picken J confirmed that it could.
This decision comes after another significant ruling in this case that the so-called 'shareholder rules' does not exist in English law. The Privy Council subsequently agreed with this position in Jardine Strategic Limited v Oasis Investments and others. (See our previous briefings here and here for further detail.)
The dispute
The issue arose from Glencore's approach to disclosure. In November 2025, the claimants discovered that Glencore had been asserting legal advice privilege more broadly than the claimants believed the law permitted, by treating Three Rivers (No 5) [2003] QB 1556 as having been wrongly decided. In that case, the Court of Appeal held that only those within a corporate entity who are authorised to instruct the lawyer and seek/receive legal advice are to be treated as 'the client'.
Glencore subsequently pulled back from its most aggressive position, that every employee should be treated as 'the client', and disclosed some 885 previously withheld documents. But Glencore continued to withhold documents passing between members of its 'client group' (as that concept is understood under Three Rivers (No 5)), even where no lawyer featured in the communication.
The claimants argued this was wrong as a matter of law. They contended that Glencore should produce all documents that it withheld on the basis of legal advice privilege which are communications between members of the 'client group' (rather than between the 'client group' and lawyers), unless they disclose the substance of privileged communications or were intended to be sent to a lawyer but never were. The claimants emphasised that a basic principle of legal advice privilege is that it applies to communications between lawyer and client.
What the court decided
Picken J rejected the claimants' position. He held that legal advice privilege applies to any document created by or sent between members of the client group, provided the document was produced for the dominant purpose of seeking legal advice.
Three Rivers: distinguished, not overruled
In reaching this decision, the court first considered whether there was any binding authority to the effect that legal advice privilege cannot operate in relation to 'intra-client' documents, namely, internal communications between members of the 'client group' and/or documents created by a member of the client group.
The claimants' central argument was that the Court of Appeal's decision in Three Rivers (No 5) precluded the assertion of legal advice privilege in respect of intra-client documents. The court rejected this.
Picken J didn't overrule Three Rivers (No 5) – it's a Court of Appeal decision and remains binding. However, he read it more narrowly than many had assumed and decided it was distinguishable. His analysis was that the decision in Three Rivers (No 5) focussed on a specific issue: whether documents produced by Bank employees who were not part of the Bingham Inquiry Unit (the designated 'client' for legal advice privilege purposes) could attract legal advice privilege. The answer was no. But that ruling, Picken J concluded, was concerned only with 'non-client' documents, and not 'client' documents (including 'intra-client' documents).
Picken J found support for this reading in the Court of Appeal's reasoning in SFO v ENRC [2019] 1 WLR 791 and in R (Jet2.com Ltd) v CAA [2020] QB 1027, in which he concluded that the court addressed the position of emails between non-lawyer members of the client group and accepted that legal advice privilege could apply to them provided the dominant purpose test was satisfied.
Further, the court concluded that none of the earlier authorities reviewed in Three Rivers (No 5) addressed the present issue either.
Considering the principle
Having concluded that there is no binding authority to the effect that legal advice privilege cannot operate in relation to 'intra-client' documents, the court went on to consider the position as a matter of principle.
The judge agreed with Glencore that,
"it would make no sense for legal advice privilege not to be available in respect of intra-client documents whose dominant purpose is to identify an issue on which the client proposes to seek advice from a lawyer but at a time at which advice has not yet been sought from the lawyer in relation to the issue identified".
By way of example, it would make no sense to distinguish between an engagement letter identifying the issue on which legal advice will be sought and an internal client document doing the same thing. Both serve the same function. Both, he held, should attract the same protection.
Further examples include a client writing herself a memorandum the day before a meeting with her lawyer, noting down facts she intends to discuss, or one member of the client group emailing another with information in preparation for a meeting with the lawyers, but the author will not attend the meeting. The court agreed that "there can be no distinction in principle between an intra-client document which is itself intended to be communicated to a lawyer and an intra-client document which contains information that is intended to be communicated to a lawyer but the document itself is not intended to be sent". What are, in effect, a client's working papers should attract legal advice privilege in the same way as a lawyer's working papers do.
What this means in practice
For corporate clients, the decision is welcome. Documents circulated within a client team (such as internal memos, preparatory emails and briefing notes) can attract legal advice privilege without a lawyer being on the email chain and without having been sent or intended to be sent to a lawyer. This is likely to be helpful to client teams who are gathering information. However, the documents must have been created for the dominant purpose of seeking legal advice. This means that they can be withheld from disclosure.
However, we would sound two notes of caution.
First, Three Rivers (No 5) remains a binding authority. However, it has been widely criticised and has now been somewhat 'chipped away at' by this first instance, High Court decision. This area is therefore in a state of uncertainty and is ripe to be tested in the courts, following which, the legal position may change. In the meantime, we expect that fact-sensitive arguments will be had on the privileged status of documents. For example, who falls within the client group? Was the dominant purpose really to seek legal advice, or was it something else? Corporate entities need to be clear from the outset of taking legal advice who the client group is and manage that closely.
Second, the ruling isn't a licence to relax. The dominant purpose test still applies. A document created to brief a colleague on commercial matters doesn't become privileged merely because the topic might eventually reach a lawyer. Therefore, continue to think carefully about document creation and dissemination (including sending documents outside the client group in particular). If you're producing documents internally and want them to be protected, think about that at the point of creation, not after the event. Involve a lawyer early in the process (as well as in the communications where possible) to help identify and manage the scope of the client group and to ensure that documents are being created with the right purpose clearly in mind.
In conclusion, it is worth expressly noting that this decision relates to legal advice privilege. The wider scope of litigation privilege may also afford protection. For advice as to strategy for maximising privilege protection, please contact our team.
