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A new ruling in Aabar v. Glencore clarifies that legal privilege can apply to non-lawyer communications between authorised client personnel in certain circumstances.

By Oliver Middleton and Duncan Graves

Key Points:

  • The High Court in Aabar v. Glencore ruled that legal advice privilege protects communications between members of the client group, as well as between clients and lawyers, provided their dominant purpose is to seek or receive legal advice.
  • These “intra-client” communications can be privileged even where they are not communicated to a lawyer or are not intended to be communicated to a lawyer.
  • The existing rules about which individuals within an organisation are the “client” for legal advice privilege purposes continue to apply. This definition remains narrow.
  • There is still some uncertainty around what constitutes intra-client communications, especially in the context of large organisations and groups of companies.

In its 16 April 2026 ruling in Aabar Holdings S.A.R.L. & Others v. Glencore Plc and Others,1 the English High Court found that communications between clients is protected by legal advice privilege under certain circumstances, even without lawyers being part of those communications.

This dispute arose from a securities class action brought against Glencore plc and some of its former directors. Glencore claimed privilege over all communications made for the dominant purpose of seeking or receiving legal advice. This included internal discussions between non-lawyers within the narrowly defined groups of Glencore employees authorised to obtain legal advice, instead of limiting legal advice privilege only to communications with in-house or external lawyers.

The claimants objected and applied to the High Court for a specific disclosure order for these internal documents, in accordance with the generally understood position that such documents are not privileged. The Court declined to grant this order.

The Privilege Issue

Legal advice privilege protects a document from disclosure if: (i) it is a communication between a lawyer and their client; and (ii) the document was made for the dominant purpose of seeking, receiving or giving legal advice. Any document that reveals the content of these communications may also be protected under legal advice privilege, even if the client does not communicate it to the lawyer directly.

Businesses and other organisations often have difficulty grappling with which employees can be considered the “client” for these purposes. The current position is governed by a contentious rule originating from a decision of the Court of Appeal: Three Rivers (No 5).2 In short, personnel within an entity who communicate with that entity’s lawyers are only considered the client if they have been tasked with seeking and receiving that advice. Employees or other personnel who are not responsible for seeking the advice are deemed third parties, i.e., they are not the client. The result is that legal advice privilege will not protect these “non-client” employees’ communications with their employer’s lawyers. These communications must be disclosed unless they reveal the nature and content of the privileged legal advice.

The Three Rivers rule is impractical for businesses, and courts have recognised this. Most businesses have senior personnel responsible for obtaining legal advice. These client personnel will rarely have all the information that internal or external lawyers need to give their advice. They therefore need to obtain that information from others, either non-client senior colleagues responsible for other areas of the business or junior non-client personnel, or they may delegate their authority to such persons on less serious legal matters. Frequently, lawyers themselves will also need to interview or exchange documents with non-client employees. The prevailing view had previously been that legal advice privilege would not protect such internal communications, even where the non-lawyer client personnel were communicating between themselves for the dominant purpose of obtaining legal advice.

The correctness of the Three Rivers decision has been doubted by the courts on several occasions, but the issue has not yet gone to the Supreme Court.3

Judgment

There Is No Binding Case Law on Intra-Client Communications

In his judgment in Aabar v. Glencore, Picken J found that previous cases did not consider whether legal advice privilege is capable of protecting non-lawyer communications between members of the client group within an entity. Instead, he held that these cases had only considered who the client was for legal advice privilege purposes, and that communications between the client and non-lawyer third parties were not privileged. Whilst some of these cases had involved intra-client documents, there had not yet been consideration of their status explicitly.4 This meant the Court of Appeal had left the intra-client communications question open, and the High Court was free to determine the issue from first principles.5

Legal Advice Privilege May Apply to Intra-Client Documents

Picken J held that documents shared between “clients” may attract privilege. He found that there was no rule of law preventing this; the logical position was that these documents should be privileged where they were for the dominant purpose of obtaining legal advice.6 Picken J considered that documents prepared by clients and shared between themselves are the “mirror image” of a law firm’s internal working papers.7 As working papers attract legal advice privilege, it followed that intra-client communications should too as both types of documents contribute to the same end objective: producing legal advice. Picken J held that these documents are all essential parts of the “process of seeking legal advice,” regardless of whether the client or lawyer produced them.8 It does not matter whether the document is ultimately shared with lawyers.

Takeaways

  • The key problem for businesses seeking legal advice remains that the client group for the purposes of litigation advice privilege is defined very narrowly in English law. Businesses should remain cautious regarding communications generated when seeking legal advice, particularly at the outset of potentially contentious matters.
  • The claimants may appeal the judgment. If not, it is likely that these issues will be tested in further cases in the near future, as parties look to withhold disclosure of documents based on this wider definition of legal advice privilege.
  • There is considerable uncertainty as to which intra-client documents will be protected in practice. For instance, in a group company context, it is not immediately clear whether client employees within subsidiaries will have the same status at group level. We expect that future cases will provide further detail on the parameters of legal advice privilege.

This post was prepared with the assistance of Louis Kill-Brown in the London office of Latham & Watkins.

  1. [2026] EWHC 877. ↩︎
  2. [2003] EWCA Civ 474. ↩︎
  3. Aabar Holdings, para 41 and judgments cited. ↩︎
  4. Aabar Holdings, para 24. ↩︎
  5. Aabar Holdings, para 46. ↩︎
  6. Aabar Holdings, para 61. ↩︎
  7. Aabar Holdings, para 60. ↩︎
  8. Aabar Holdings, para 61. ↩︎