In a significant judgment for civil and commercial litigators, Picken J has held that legal advice privilege applies to certain internal documents, referred to as "intra-client communications", that were created by, or exchanged between, members of a client group for the dominant purpose of seeking legal advice, notwithstanding the absence of any lawyer within that particular communication loop.
The decision must be understood against the backdrop of <span class="news-text_italic-underline">Three Rivers District Council v Bank of England (No 5) [2003] EWCA Civ 474</span>, in which the Court of Appeal held that privilege attached only to communications between a company's lawyers and those employees specifically tasked with seeking and receiving legal advice, the so-called "client group." Communications between the client group and other employees falling outside that group were held not to attract privilege. That ruling has since been the subject of considerable uncertainty and academic criticism.
In <span class="news-text_italic-underline">Aabar Holdings SARL v Glencore plc</span>, towards the close of the disclosure exercise, the first defendant (Glencore, “<span class="news-text_medium">G</span>”) informed the claimant (Aabar, “<span class="news-text_medium">A</span>”) that it had proceeded on the basis that Three Rivers (No 5) was wrongly decided insofar as it restricted legal advice privilege to communications between a company's lawyers and the designated internal client group.
The claimant applied for disclosure of all documents over which Glencore had claimed legal advice privilege on the ground that they comprised communications between members of the client group. Picken J rejected that application.
Picken J held that the precise question before him, whether privilege extended to intra-client communications passing solely between members of the client group, without any lawyer involved, had not in fact been addressed by the Court of Appeal in Three Rivers (No 5) and that the earlier decision was therefore distinguishable. He further observed that the point had not been considered in the authorities cited in Three Rivers (No 5) and (No 6), in the other cases relied upon by the claimant, or in the relevant academic commentary.
On that basis, the Court concluded that there was no principled justification for withholding privilege from intra-client documents whose dominant purpose was to identify facts to be communicated to a lawyer, or to identify issues upon which legal advice would be sought. Such documents ought to attract privilege in the same manner as lawyers' working papers. This conclusion was bolstered by the Court of Appeal's decisions in <span class="news-text_italic-underline">SFO v ENRC [2019] 1 WLR 791</span> and <span class="news-text_italic-underline">R (Jet2.com Ltd) v CAA [2020] QB 1027</span>, in both of which doubts were expressed as to the correctness of Three Rivers (No 5), a decision which, it should be noted, remains binding authority.
This judgment offers meaningful clarification in an area that has long generated practical difficulty for litigators advising on privilege. By distinguishing rather than overruling Three Rivers (No 5), Picken J has carved out an important qualification: where intra-client documents are created or exchanged for the dominant purpose of seeking legal advice, privilege will apply, regardless of whether a lawyer was directly involved in those communications.
<span class="news-text_medium">Case:</span> <span class="news-text_italic-underline">Aabar Holdings SARL v Glencore plc</span> [2026] EWHC 877 (Comm) (16 April 2026, Picken J)
