Legal advice privilege has long been understood in England and Wales as a privilege attaching to the lawyer-client relationship. The Court of Appeal’s decision in Three Rivers District Council v. Governor and Bank of England (No 5)[1] cemented – or so many thought – the proposition that privilege could only attach to communications passing between a lawyer and a defined “client group”, and not to wider internal documents. But did Three Rivers (No 5) actually go that far? In a significant judgment in Aabar Holdings S.á.r.l. & Ors v. Glencore Plc,[2] Mr Justice Picken concluded that it did not, and that intra-client documents created for the dominant purpose of seeking legal advice can also attract legal advice privilege.
Background
In an earlier judgment in the same proceedings, Picken J concluded that the so-called Shareholder Rule should be regarded as no longer existing, a conclusion the Privy Council subsequently agreed with in Jardine Strategic Limited v. Oasis Investments II Master Fund Ltd.[3][4] The judgment in this matter returned to the question of privilege to address a separate question: the scope of legal advice privilege and, in particular, the extent to which that privilege applies 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 seeking legal advice.
The genesis of the dispute was in the position taken by Glencore when providing its disclosure. Glencore argued it was entitled to assert privilege over communications between members of the “client group” as defined in Three Rivers (No 5) – that is, those individuals within a business who are authorised to seek and receive legal advice on its behalf (i.e. intra-client documents), even where no lawyer was a party to the communication. The claimants disagreed. The claimants’ position was straightforward: Glencore should be ordered to produce all documents it had 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), other than those which evidence the substance of privileged communications. The argument relied heavily on Three Rivers (No 5), which the claimants read as establishing that legal advice privilege is confined to communications passing between the client and their legal advisors.
The High Court decision
The court reviewed Three Rivers (No 5) carefully and in light of subsequent case law which interpreted the same question of privilege. The court considered that the issue before the Court of Appeal in Three Rivers (No 5) focused exclusively on categories of documents that were prepared by individuals falling outside of the agreed “client group”. It did not address documents created by or circulated between members of an agreed “client group”. The court therefore concluded that Glencore was right to argue that Three Rivers (No 5) should be treated as concerned only with “non-client” documents, and not with “client” documents, including “intra-client” documents.
Therefore, the court concluded that Three Rivers (No 5) was not a binding authority on how privilege should be decided in connection with internal communications between members of the client group and/or documents created by a member of the client group for the dominant purpose of seeking legal advice. Having concluded that there was no binding authority from the Court of Appeal, the court then turned to consider the public policy principles attaching to the law of privilege.
The court held that there can be no distinction in principle between, on the one hand, an engagement or instruction letter that identifies the issue on which legal advice will be sought and, on the other hand, another document or communication created by the client which identifies the same issue. There is, in practical terms, no difference between the two types of documents, and it would be illogical to permit legal advice privilege to apply in the one case but not the other.
Similarly, the court remarked that it would not make sense for legal advice privilege not to apply to intra-client documents whose dominant purpose is to identify facts that the client proposes 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 (e.g. a client writing themselves a memorandum with notes for a forthcoming meeting with their lawyer or one member of the client group emailing another with information or thoughts in preparation for such a meeting). If a lawyer’s working papers are the subject of legal advice privilege – which was obviously the case and not in dispute – then the court found it difficult to see why a client’s working papers should not also attract such privilege, as they are the mirror image of each other and should be treated in the same way.
The court 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.
Takeaway
This judgment is a significant development in the law of privilege. For years, Three Rivers (No 5) cast a long shadow – with practitioners, textbook authors and multiple Courts of Appeallamenting its perceived scope, and the UK Supreme Court never finding an appropriate vehicle to revisit it. The court in this matter found a path through; rather than overruling Three Rivers (No 5) – which, as a matter before the High Court, could not be done – the scope of Three Rivers (No 5) was carefully circumscribed.
The practical implications are material. By recognising that intra-client documents attract legal advice privilege (where created for the dominant purpose of seeking legal advice), the judgment goes some way to addressing the concerns raised in relation to Three Rivers (No 5), without needing to wait for the Supreme Court to deal with them. For now, at least, corporations engaging in litigation can take some comfort that the internal deliberations of those within the client group, prepared with the genuine dominant purpose of seeking legal advice, are not rendered disclosable merely because a lawyer was not sitting in copy.
[1] [2003] QB 1556.
[2] [2026] EWHC 877 (Comm).
[3] [2025] UKPC 34.
[4] See this On The Record blog post for further details.
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Ben Sharrock-Mason