Legal advice privilege and intra-client communications (English High Court decision)

Under English law, legal advice privilege protects communications which are:

i.    confidential;

ii.    between a lawyer and their client; and

iii.    made for the dominant purpose of giving or seeking legal advice.

Since the Court of Appeal’s 2003 decision in Three Rivers (No 5), where the client is not an individual (eg where it’s a company), the term “client” has been interpreted very narrowly to include only those individuals within the company or other organisation who are authorised to seek or receive legal advice on a particular issue (Client Group).  Only communications between the lawyer and members of the Client Group can be protected by legal advice privilege.  Communications between the lawyer and other individuals employed by the client but not part of the Client Group won’t be protected.

In Aabar S.A.R.L. v Glencore plc [2026] EWHC 877 (Comm), Picken J was asked to establish whether legal advice privilege also applies to:

• internal communications between members of the Client Group; and/or 
• documents created by a member of the Client Group

in circumstances where the communications and/or documents are not shared with the lawyers and are not created with the intention of being shared with the lawyers (but are confidential and are created for the dominant purpose of seeking legal advice).

Picken J conducted a thorough review of the relevant case law, before and after Three Rivers (No 5), and concluded that there was no relevant binding authority on this specific point.  He then turned to the academic textbooks and found them to be in favour of privilege protection applying to intra-client documents which are not sent to lawyers, but which are created for the dominant purpose of seeking legal advice.

As a matter of legal principle Picken J concluded 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.”

In other words, if a document is created within the Client Group for the purpose of getting legal advice, it may still be privileged even if it never leaves the Client Group and there was no intention when it was created that it would leave the Client Group.

• This decision underscores the importance of getting the Client Group right.  How you do that will depend on the circumstances. Some organisations find it helpful to create a list of individuals who are in the Client Group on a particular matter and to review that regularly for any changes which need to be made.  Any such list must reflect reality – the court will be unimpressed with any attempt to artificially extend privilege protection to documents created by or sent to people who are not within the Three Rivers (No 5) meaning of the “client”.
• The judgment also highlights the need for good discipline around communications within the business.  Consider putting a communications protocol in place to mitigate the risk of losing privilege.
• Picken J found there was no logic in treating a lawyer’s working papers (which would be privileged) any differently from the client’s working papers (which hitherto may not have been), as “they are the mirror image of each other and, as such, should be treated in the same way for legal advice privilege purposes” (para 60).  He set out three helpful examples of documents which could form part of a client’s working papers and be protected by legal advice privilege:

i.    the day before meeting their lawyer (for the purpose of seeking legal advice), a client prepares by writing themselves a memorandum with notes for the meeting (para 57);

ii.    one member of the Client Group who is unable to attend a later meeting with the lawyer emails another member of the Client Group with information or thoughts to prepare for the meeting (para 57); and

iii.    “a lawyer might ask for information on a particular topic from the client to enable the lawyer to give advice and this may be recorded by the client in a memorandum which the client does not intend to and does not in fact physically send to the lawyer.  The memorandum would not therefore strictly speaking constitute a communication.  Nor does it constitute an intended communication… But the intention to communicate with the lawyer entirely accounts for the existence of the memorandum and the contents of the memorandum are utilised in the communication sent by the client to his/her lawyer” (para 59, quoting from the 4th edition of The Law of Privilege by Bankim Thanki KC).

• An intra-Client Group communication or document must be created for the dominant purpose of seeking legal advice in order to be protected by legal advice privilege.  So if you are creating an intra-Client Group communication or document for those purposes, it will usually be helpful to record that on the face of the document.  Contemporaneous evidence about the purpose of a document can be persuasive (though will not be conclusive).  Remember that not every communication between individuals in the Client Group will be protected by legal advice privilege and, if in doubt, you should contact your lawyer.

The Court of Appeal has been asked several times to review Three Rivers (No 5) but consistently declines to do so on the basis that it is bound by its previous decision, which can only be overruled by the Supreme Court. The long-term hope for many is that the right case comes along for someone to take the Three Rivers (No 5) concept of the Client Group to the Supreme Court.

In the meantime, the claimants in this case have applied to the Court of Appeal for permission to appeal Picken J’s decision.