HIGH COURT REJECTS NARROW VIEW OF LEGAL ADVICE PRIVILEGE

In Aabar Holdings Sarl v Glencore plc [2026] EWHC 877 (Comm), Mr Justice Picken has delivered a second significant judgment concerning legal advice privilege.

The case concerned the scope of legal advice privilege in relation to “internal communications between members of the client group and/or documents created by a member of the client group”.

The judge was not persuaded that the case of Three Rivers (No.5) [2003] Q.B. 1556 required him to find that legal advice privilege only applies to communications between lawyer and client.

The reason for this, was that in the judge’s view Three Rivers was not concerned with intra-client documents.  It was concerned with communications outside of the client group and with documents created by non-members of the client group.   

The Judge held that legal advice privilege applies to “any intra-client document which is sent between or created by members of the “client group” for the dominant purpose of seeking legal advice”.  This includes documents created but not sent.  The judge stated that this position was supported by the weight of the authorities. 

At paras [52]-[60] and [61] the judge stated:

“… my conclusion is that, as a matter of principle, it cannot be correct that the application of legal advice privilege to intra-client documents is as circumscribed as the Claimants maintain. I am clear, on the contrary, that there can be no justification for treating intra-client documents, created as part of the process of seeking legal advice or assistance and/or for which the intention to communicate with the lawyer accounts for the existence of the document, as not attracting legal advice privilege in circumstances where that privilege is available in relation to other documents that are materially similar. There is no justification for such a restrictive approach …”

The aforementioned judgment follows Picken J’s earlier judgment of 27 November 2024 ([2024] EWHC 3046 (Comm)), in which he found that the so-called ‘Shareholder Rule’ (which had previously been thought to prevent a company from claiming privilege against its own shareholders) should be regarded as obsolete.

The judgment did not directly address which employees of a company constitute ‘the client’ for the purposes of claiming privilege, such issue being raised in the Three Rivers case.  This issue is liable to be reconsidered by the Supreme Court in due course, bearing in mind that the Three Rivers judgment has been subject to significant academic criticism.

The recent Picken J judgment will need to be carefully considered during the disclosure phase of applicable commercial cases, with the ultimate effecting being a reduction in the volume of documents that are liable to be disclosed.