English Commercial Court expands application of legal advice privilege to intra-client communications

The Commercial Court, in Aabar Holdings S.á.r.l. & Ors v Glencore Plc [2026], held that legal advice privilege (LAP) can extend to documents created by or communications exchanged within corporate "client groups", provided that the documents or communications were created for the dominant purpose of seeking legal advice. This is a pragmatic and positive development that provides clarity to the scope of LAP.

Before Glencore

In Three Rivers (No. 5) [2003], the Court of Appeal decided that, in a corporate context, LAP applied only to communications between a company's lawyers and those representatives of the client tasked with obtaining legal advice – described as the "client group" – not communications between the company's lawyer and every company employee. LAP was therefore understood to apply only to confidential communications passing between a client group and its lawyers for the dominant purpose of giving or receiving legal advice and to documents evidencing the substance of such communications or are intended to be such communications.

What happened in Glencore?

This decision arose in the context of a securities class action against Glencore plc and its former directors. Glencore informed the claimants that it had approached its disclosure obligations on the basis that Three Rivers had been wrongly decided, and that LAP should apply to all communications made for the dominant purpose of seeking or receiving legal advice – not just those to and from the client group.

The claimants objected. Glencore agreed to apply a narrow "client group" definition to its disclosure but maintained that it was entitled to assert privilege over communications between members of that client group. The claimants objected again, arguing that Three Rivers established that LAP was confined only to communications between lawyer and client and to documents evidencing such communications or intended to be such communications.

The decision

The court considered the privilege status of intra-client documents and communications.

Mr Justice Picken reasoned that Three Rivers had been concerned only with communications between the client group and external parties, and had not considered the treatment of documents and communications within the client group. He held that LAP "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". LAP can, therefore, apply where a lawyer is not a party to the communication.

He provided two examples of intra-client documents and communications capable of attracting that protection. The first was "a client, the day before he or she is due to meet his lawyer for the first time, writing himself or herself a memorandum with notes for the meeting". The second was "one member of the client group, who will not be attending the meeting with the lawyer, emailing another member of the client group with information or thoughts in preparation for the meeting".

Mr Justice Picken also likened the documents in question to a client's working papers, commenting that, since a lawyer’s working papers can be the subject of LAP, it is difficult to see why a client’s working papers would not also attract such privilege.

The effect of the decision is to broaden the scope of communications covered by LAP, while leaving intact the principles established in Three Rivers on the restriction of legal advice privilege to the client group.

Osborne Clarke comment

While a decision at first instance, Glencore is a pragmatic development that provides clarity on the application of LAP to intra-client group communications and one that reflects the reality of how clients engage with their lawyers.

However, the principles established in Three Rivers as to the identity of the corporate client for privilege purposes remain. Lawyers and their clients will want, therefore, to continue to ensure that communications and documents are confined to the client group where LAP is to be preserved. The ruling does, at least, give reassurance that communications within that group will attract LAP, provided they were created for the dominant purpose of giving or receiving legal advice.

Oliver Derham, a trainee solicitor with Osborne Clarke, contributed to this Insight.

If you have any questions on the application of legal advice privilege following this decision, please reach out to one of our experts.