In Aabar Holdings SARL (“Aabar Holdings”) & Ors v Glencore PLC and Ors (“Glencore”)1, the High Court of England and Wales considered whether legal advice privilege extends to internal communications between members of a corporate “client group” where no lawyer is copied or intended to receive the document. The decision marks an important development in English privilege law, while leaving untouched the narrow definition of “client” under Three Rivers Council vs The Governor and Company of the Bank of England (No 5)2, i.e. the “client” refers only to those individuals specifically authorized to seek and receive legal advice on behalf of the corporation.
Facts of the Case
The judgment came about in the context of certain documents claimed as privileged by Glencore, during the extended disclosure stage. Glencore initially advanced a wide contention that Three Rivers (No. 5) had been wrongly decided and that legal advice privilege applied broadly to all communications created for the dominant purpose of seeking or receiving legal advice, regardless of whether the individuals involved fell within a narrowly defined “client” term. Aabar Holdings objected, contending that this approach was inconsistent with the settled understanding that legal advice privilege protects communications between a lawyer and the client or documents evidencing such communications, and that Three Rivers (No 5) remained binding authority restricting the identity of the “client” in the corporate context3.
Glencore later withdrew its broader contention, accepting that Three Rivers (No 5) continues to confine the “client” to those individuals specifically authorised to seek and receive legal advice on the company’s behalf. However, it maintained that privilege could still apply to communications between members of that defined client group, even where no lawyer was copied or involved, provided those communications were created for the dominant purpose of seeking legal advice. Aabar Holdings sought production of documents withheld on the basis of legal advice privilege, where the documents were intra-client communications, unless they either evidenced the substance of privileged lawyer-client communications or were “inchoate communications”, namely documents intended to be sent to a lawyer but not in fact sent4.
The narrow question before the Court was accordingly whether internal documents created by or exchanged between members of the client group for the dominant purpose of seeking legal advice could themselves attract legal advice privilege, even where no lawyer was a party to the communication and the document was never actually sent to a lawyer.
Decision of the High Court of Justice
Accepting the submissions advanced for Glencore, the Court held that Three Rivers (No. 5) concerned communications and documents involving persons outside the relevant client group, rather than communications between members of the client group itself5. Picken J therefore held that there was no binding authority preventing legal advice privilege from applying to intra-client documents created for the dominant purpose of seeking legal advice, provided that the individuals involved fell within the ambit of the client group. In reaching this conclusion, the Court adopted a dominant-purpose test for intra-client documents, drawing in particular on the reasoning in R (on the application of Jet2.com Ltd) v. Civil Aviation Authority6 concerning multi-addressee communications, where emails whose dominant purpose was to obtain legal advice were held to be privileged even though sent to both lawyers and non-lawyers7.
Picken J considered it artificial to protect a formal instruction letter to a lawyer but deny protection to an internal memorandum identifying the same legal issues prepared in preparation of a meeting with the lawyer. Similarly, he regarded it as illogical to protect a lawyer’s working papers while refusing protection to the client’s own working papers prepared for the purpose of obtaining that advice8. In his analysis, the client’s preparatory notes and working papers were the “mirror image” of the lawyer’s working papers and should therefore be treated in the same way for the purposes of legal advice privilege9.
Aabar Holding’s application was dismissed. However, it is important to note that the judgment did not expand the meaning of “client”. The protection applies only where the relevant persons fall within the defined client group and where the dominant purpose test is satisfied.
Analysis
The decision represents a practical and commercially sensible development in the realm of legal advice privilege. In corporate matters, legal advice is rarely sought by one single individual acting in isolation. Before a lawyer is instructed, members of a client team commonly exchange notes, drafts, factual summaries, and risk assessments in order to crystallise the issues upon which advice is to be sought. Picken J recognizes this reality, and his reasoning brings those preparatory documents within the protection of legal advice privilege.
At the same time, the decision should not be read too widely. It does not mean that all employees of a corporation are part of the client for privilege purposes; it does not dilute the narrow approach in Three Rivers (No. 5) and expressly proceeds on that basis. Nor does it protect ordinary internal business communications, like factual updates or internal strategy exchanges, merely because legal advice may later be sought. In our view, the real significance of the judgment lies in where future disputes will now shift. The anticipated points of contention will be whether the persons communicating were truly within the authorized client group, and whether the document was genuinely created for the dominant purpose of seeking legal advice rather than for a commercial, operational or mixed purpose. This will potentially make the privilege inquiry more fact-sensitive, with courts likely to examine the purpose, circulation and context of each document closely.
It is important to note that this is a first-instance decision and may well be tested on appeal. Therefore, careful privilege protocols, clear identification of the client group, and disciplined drafting remain essential.
*Vyapak Desai, Counsel, International Disputes & Investigations, Vyapak Desai Law Chambers
** Ananya Mittal, is associated with Vyapak Desai Law Chambers.
[1] [2026] EWHC 877 (Comm) (“Aabar Holdings 2026 Decision”).
[2] [2003] EWCA Civ 474 (“Three Rivers No. 5”).
[3] Aabar Holdings 2026 Decision (n 1) [5]-[6].
[4] Aabar Holdings 2026 Decision (n 1) [10].
[5]Aabar Holdings 2026 Decision (n 1) [34]-[36].
[6] [2020] EWCA Civ 35.
[7]Aabar Holdings 2026 Decision (n 1) [71] – [74].
[8]Aabar Holdings 2026 Decision (n 1) [55].
[9]Aabar Holdings 2026 Decision (n 1) [60].