Aabar Holdings v Glencore: intra-client documents and the scope of legal advice privilege

In a significant Commercial Court judgement handed down on 16 April 2026, Mr Justice Picken has clarified that legal advice privilege is not confined to direct communications between lawyer and client. In Aabar Holdings S.À.R.L. & Ors v Glencore PLC & Ors [2026] EWHC 877 (Comm), the court held that intra-client documents — communications between members of a client group that do not involve a lawyer — attract legal advice privilege provided their dominant purpose is the seeking of legal advice.

The case arises from large-scale litigation brought against Glencore, its former chief executive Ivan Glasenberg, and former chief financial officer Steven Kalmin. During extended disclosure, Glencore asserted privilege over internal communications that passed solely between members of its client group. The claimants argued that, on a proper reading of Three Rivers (No 5) [2003] QB 1556, such documents could not attract legal advice privilege at all, save where they evidenced the substance of a privileged lawyer–client communication or were intended for transmission to a lawyer but never sent.

Picken J rejected that argument, concluding that Three Rivers (No 5) was never concerned with intra-client documents in the first place. The decision in that case, he held, addressed only communications from individuals outside the client group — Bank employees who were not members of the Bingham Inquiry Unit — and the Court of Appeal's reasoning should not be read as foreclosing privilege claims in respect of wholly internal client communications. The ratio, properly understood, is that privilege cannot arise where non-client or third-party documents are involved; it says nothing about the intra-client position.

This analysis was supported by the subsequent case law. The Court of Appeal in SFO v ENRC [2019] 1 WLR 791 recognised that Three Rivers (No 5) was confined to non-client documents. More instructively, Hickinbottom LJ's discussion in Jet2.com [2020] QB 1027 at [47] and [100] explicitly contemplated that emails between non-lawyer members of a client group could attract privilege where their dominant purpose was to settle instructions to a lawyer — a passage Picken J declined to dismiss as obiter or as infelicitous drafting, given that the documents in issue in that appeal included draft letters prepared by members of the client group.

On principle, the court found the claimants' position untenable. If a document intended to be sent to a lawyer attracts privilege even when it is never despatched, there is no logic in denying privilege to a materially similar document prepared by the client as a precursor to that communication — whether a memorandum written the day before a meeting with counsel, or an internal email from one client-group member to another containing information they intend to relay to the lawyer. Such documents will inevitably evidence the substance of any subsequent privileged communication, and the court drew a direct analogy with lawyers' working papers, which are uncontroversially privileged.

The practical consequence for disclosure exercises is considerable. Glencore is entitled to maintain privilege over intra-client communications created with the dominant purpose of seeking legal advice, without needing to show that those communications themselves passed between lawyer and client. The judgement does not disturb the orthodoxy of Three Rivers (No 5) as it applies to non-client employees or third parties, nor does it alter the dominant purpose test. What it clarifies is that neither the authorities nor principle require a lawyer to be party to a communication for legal advice privilege to attach to it, provided the document is genuinely part of the process of seeking legal advice.

The question of whether Three Rivers (No 5) should be departed from more broadly in relation to non-client employees remains for the Supreme Court to resolve, as both SFO v ENRC and Jet2.com made plain. This judgement carves out a discrete and previously unaddressed category — wholly internal client-group communications — and resolves it in favour of privilege.