Rory Spillman, Duncan Grieve and Asees Johar examine the High Court’s decision in Aabar Holdings SARL v Glencore plc & Ors in Thomson Reuters PLC Magazine

Another significant ruling on privilege has been handed down in the ongoing securities action Aabar Holdings SARL v Glencore plc and others, this time regarding the application and scope of legal advice privilege (LAP) to intra-client documents ([2026] EWHC 877 (Comm)). The High Court held that, contrary to what many may have understood as the position under Three Rivers District Council and others v The Governor & Company of the Bank of England (No 5), any intra-client document that is sent between or created by members of the client group for the dominant purpose of seeking legal advice is protected by LAP; LAP does not only extend to direct communications between client and lawyer, or documents that evidence the substance of those privileged communications ([2003] EWCA Civ 474; www.practicallaw.com/1-102-3496).

The judgment is also of considerable significance in the context of corporate internal investigations as many practitioners had previously understood that a company’s own preparatory work, even if clearly directed towards obtaining legal advice, might be vulnerable to disclosure. The court’s conclusion reinforces current good practice on how internal investigations should be structured and documented, and provides a degree of protection that practitioners have long argued the law should afford.

A dispute over disclosure

The proceedings involve claims brought by a number of institutional investors against Glencore PLC and certain of its former directors under sections 90 and 90A of the Financial Services and Markets Act 2000 (FSMA). The claims relate to alleged misconduct by certain Glencore subsidiaries, and specifically misstatements or omissions in Glencore's prospectuses and published information, or dishonest delay in publishing specific information. That trial is listed for October 2026.

In preparation for trial, Glencore, on giving its final tranche of extended disclosure, informed the Claimants that it had conducted its disclosure exercise on the basis that a component of Three Rivers (No 5) had been wrongly decided. Specifically, Glencore had given disclosure on the basis that LAP applies to “all communications made for the dominant purpose of seeking or receiving legal advice”, as opposed to the narrower Three Rivers (No 5) interpretation that it attaches “only to communications passing between a corporation’s lawyers and employee(s) of the corporation who have been tasked with seeking and receiving such advice on behalf of the client”.

The Claimants challenged Glencore's approach on the basis that Glencore had:

*          Treated every Glencore employee as "the client", as opposed to solely those charged by the company with obtaining legal advice.

*          Asserted privilege over communications between members of the "client group" rather than confining it to communications between the client, or client group, and its lawyers.

Although Glencore subsequently informed the Claimants that it would no longer assert privilege on the basis that Three Rivers (No 5) was wrongly decided, it transpired that Glencore had maintained that it was entitled to assert privilege over communications between members of the client group on the basis that the primary purpose of these internal communications was to obtain legal advice.

The Claimants, pointing to Three Rivers (No 5), submitted that Glencore should be ordered to produce those documents that it had withheld on the basis of LAP which were communications between members of the client group rather than between the client group and its lawyers, other than documents that evidenced the substance of privileged communications or were intended to be communications between the client group and its lawyers.

The High Court decision

Following a detailed review of Three Rivers (No 5), the case law preceding and following Three Rivers (No 5), and the academic literature, the court concluded that the previous case law did not address the question of intra-client documents and communications; that is, internal documents or communications that are created by, or exchanged between, members of the client group (being those members of the client who are authorised to seek or receive legal advice on its behalf) and are prepared for the dominant purpose of seeking legal advice. Instead, previous cases had focussed on documents and communications falling outside of the client group, such as documents created by employees who had not been authorised to seek the relevant legal advice. The court concluded that there was no existing authority to prevent the assertion of a claim to LAP where intra-client documents are concerned.

The court further observed that, as a matter of principle, it would make no sense for LAP to not be available in respect of intra-client documents where their dominant purpose is to identify an issue on which the client proposes to seek legal advice, but where the client has not yet sought that advice. The court also noted that a document or communication created by the client identifying the issue on which legal advice would be sought would "inevitably evidence the substance of any later privileged communication between client and lawyer in which the client seeks advice from the lawyer in relation to the relevant matter".

The court observed that there could be no distinction in principle between an intra-client document that is "intended to be communicated to a lawyer" and one containing "information that is intended to be communicated to a lawyer but the document itself is not intended to be sent". The court considered it difficult to see why a client's working papers should not attract privilege in circumstances where they are a mirror image of the lawyer's working papers, which are subject to LAP.

The court concluded that, as a matter of law, Glencore was entitled to claim LAP over internal documents that were created or shared among the client group, including communications between the client group (to which no lawyer was party), provided that the dominant purpose of the internal documents was to seek legal advice.

This ruling follows an earlier notable judgment on privilege in the same proceedings, in which the High Court concluded that the "shareholder rule", that a company cannot assert privilege against its shareholders save with respect to documents created for litigation against that shareholder, no longer exists ([2024] EWHC 3046 (Comm); see News brief “Privilege in shareholder disputes: the end of the shareholder rule?”, www.practicallaw.com/w-045-6218).

A possible appeal

It is unclear whether the Claimants will seek to appeal and so practitioners should not treat this judgment as finally settling the position. If an appeal is sought, there may yet be an opportunity for the Supreme Court to clarify the law on LAP in circumstances where Three Rivers (No 5) has been widely criticised. In the meantime, intra-client documents that are created for the dominant purpose of seeking legal advice are protected by LAP and careful attention should be given to the creation and identification of such documents.

Examples of these documents, as given in the judgment, include personal notes or memoranda that are written by the client group in advance of meeting with external lawyers, or internal communications containing preparatory information or thoughts. Given that these documents are more likely to attract LAP, they should be subject to proper internal document retention policies.

Implications for internal investigations

The decision is particularly relevant for documents that are produced in internal investigations where factual analysis and issue identification often, necessarily, take place within the client group before external lawyers are formally engaged. Documents that are prepared when mapping facts or identifying issues in advance of meeting with external lawyers may now more clearly attract LAP. However, although it appears that internal corporate communications are more likely to attract LAP and this marks a potential change to the previously considered position, the significance of the ruling's impact remains to be seen. In particular, it remains an important requirement that the dominant purpose of the document or communication was the seeking of legal advice. This is a question of substance rather than form. Companies and corporations should establish clear internal workflows in preparation for seeking such advice, and make plain that those documents or communications are indeed created for the dominant purpose of doing so.

In addition, if and until it is addressed by the Supreme Court, the key issue of who falls within the definition of "client" or the "client group" continues to be limited following Three Rivers (No 5). As such, intra-client documents and communications that are created for the dominant purpose of seeking legal advice will only be protected if they are created by individuals who fall within that limited definition. It therefore remains crucial that in-house counsel ensure that there is a clearly identified and documented client group at the outset of any investigation or when seeking legal advice so that it is obvious who has responsibility for communicating with and seeking advice from external counsel, and that clear reporting lines and authorisation structures are maintained.

As far as cross-border matters and investigations are concerned, practitioners should note that this analysis reflects English law only, and other jurisdictions can and do take varying approaches to privilege over preparatory materials that are created ahead of seeking legal advice.