Summary

Since the Court of Appeal’s ruling in Three Rivers (No 5) [2003] EWCA Civ 474, it has been considered settled law that the scope of legal advice privilege is limited to communications (or draft communications) between client and lawyer for the dominant purpose of seeking or receiving legal advice or, in limited circumstances, documents recording that advice.

The recent High Court decision in Aabar SARL v Glencore Plc [2026] EWHC 877 (Comm) re‑examines the orthodox understanding derived from Three Rivers (No 5).  The Court held that communications between members of the defined corporate “client group” may attract legal advice privilege even where the communications do not themselves disclose legal advice and are never shared with lawyers.

However, companies should approach this expansion with caution until confirmed by a higher court.  The decision does not alter the narrow definition of “client” affirmed by the Court of Appeal in Serious Fraud Office v ENRC [2018] EWCA Civ 2006, being those individuals within an organisation responsible for seeking or receiving legal advice.  Nor does it extend the privilege to communications with employees outside that group.

Background

The privilege dispute formed part of a long-running securities class action against Glencore and some of its former directors.  When providing its final tranche of disclosure, Glencore informed the claimants that it had been approaching its obligations on the basis that Three Rivers (No 5) had been wrongly decided, and that legal advice privilege applied to “all communications made for the dominant purpose of seeking or receiving legal advice”.

When the claimants objected to this approach, Glencore retreated from its contention that every employee should be treated as the “client”, but maintained it was entitled to assert privilege over communications passing solely between members of the narrow client group (as defined above).  The claimants disagreed, contending that such communications were privileged only insofar as they disclosed legal advice or were intended to be communicated to lawyers.  This was the point of dispute that came before Mr. Justice Picken.

The Decision

Picken J decided the matter in Glencore’s favour, having regard to authority and principle:

1. He concluded that, on a proper reading, none of the authorities on which the claimants relied (including Three Rivers (No 5), NatWest v Rabobank Nederland [2006] EWHC 2332 (Comm), Serious Fraud Office v ENRC and In re RBS Rights Issue Litigation [2016] EWHC 3161 (Ch)) concerned or decided the position with respect to intra-client communications. It was accordingly open to him to find that legal advice privilege could extend to such documents.
2. Indeed, the Judge considered there was recent Court of Appeal authority supporting this: CAA v R (on the application of Jet2.com) [2020] EWCA Civ 35. He reviewed the judgment of Hickinbottom LJ in some detail, rejecting arguments from the claimants that the passage on which Glencore relied was “infelicitous drafting” and/or obiter.
3. Finally, Picken J approached the matter from a principled perspective, finding that “[t]here 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”, for example “a client, the day before he or she is due to meet his lawyer for the first time, writing himself or herself a memorandum with notes for the meeting” or “one member of the client group, who will not be attending the meeting with the lawyer, emailing another member of the client”. Provided such documents were created for the dominant purpose of seeking legal advice, they could attract legal advice privilege even if never shared with lawyers.

Implications

On its face, this decision is a welcome one, removing apparently arbitrary distinctions in the law of privilege.  As the Judge observed, it does not seem logical that a draft communication prepared for a lawyer can attract privilege, whereas an internal note intended to inform that draft cannot.  Similarly, it does not chime with the realities of modern commercial practice that legal advice can be disseminated internally without loss of privilege, but internal documents prepared for the purpose of obtaining that advice are not privileged.

However, we would advise companies to approach Picken J’s ruling with some caution at this stage, because:

• It is High Court authority only. Added to which, it forms part of hard-fought litigation, so that there is a distinct possibility of appeal.
• It does not affect the “client group” limitation established by Three Rivers (No 5). Communications with employees outside that group remain unprotected (absent litigation privilege).
• The dominant‑purpose test remains critical and must be applied document‑by‑document. Internal documents created for commercial, operational or compliance purposes will not be privileged merely because legal advice is later sought in respect of them or their subject matter.

The prudent approach remains to structure internal processes so that legal advice is sought through a clearly defined client group, and to assume that purely internal documents may be disclosable, at least until Picken J’s decision is upheld on appeal and/or the Supreme Court has the opportunity to address (and potentially overturn) Three Rivers (No 5).