In a significant ruling on disclosure (Aabar Holdings SARL v Glencore Plc), the Commercial Court has held that legal advice privilege can attach to certain internal documents and communications within a corporate “client group” even where no lawyer is copied in - provided the dominant purpose is for seeking legal advice.
The decision will be welcomed by many businesses, but it sits against a background of long-running debate about the scope of legal advice privilege and is a candidate for appellate scrutiny.
What the Court decided
The dispute arose in the context of extended disclosure. The Claimants challenged Glencore’s reliance on legal advice privilege (“LAP”) to withhold from its disclosure certain documents that were exchanged internally within the defined “client group” but did not include any lawyer as sender or recipient.
The court rejected the argument that LAP is confined to, (i) communications between lawyer and client, (ii) documents evidencing the contents of such communications, or, (iii) drafts intended to be sent to a lawyer but not in fact sent. Instead, Picken J held that LAP can extend to intra-client communications and documents created or shared within the client group for the dominant purpose of seeking legal advice. The key takeaways from the judgment are:
Dominant purpose remains critical: the privilege analysis focuses on why the document/communication was created or sent (i.e., distinguishing between whether the item was created or sent for the purpose of seeking legal advice and other commercial or operational purposes).
No “lawyer on the email” requirement: a communication may be privileged even if no lawyer is included, if it forms part of the process of obtaining legal advice.
Still a narrow “client group”: the decision does not relax the separate (and controversial) principle from Three Rivers (No 5) about which employees constitute the “client” for LAP purposes when communicating with lawyers.
Third‑party / wider employee communications remain risky: materials gathered from employees outside the client group (or other third parties) are still vulnerable to disclosure unless another head of privilege applies (e.g., litigation privilege) or the document otherwise evidences privileged advice.
Why this matters for businesses
Large organisations rarely obtain legal advice without internal work first. This judgment supports the proposition that internal communications within the client group that are genuinely driven by the need to obtain legal advice can be protected, even before a lawyer is consulted on the specific point. That can be particularly important in fast-moving situations where internal coordination needs to happen first.
That said, the decision does not create a blanket protection for internal communications. Courts will continue to scrutinise whether the purpose of documents is predominantly legal or predominantly commercial. In practice, the judgment increases the importance of good privilege hygiene, because the burden will be on the party claiming privilege to justify the dominant purpose.
Practical guidance: protecting legal advice privilege in internal communications
Define (and document) the “client group” early: identify the individuals authorised to seek and receive legal advice for the business. Keep the group as small as is workable.
Be clear about purpose in the document itself: where appropriate, state that the document/email is prepared “for the purpose of seeking legal advice” and avoid over-labelling routine commercial material as “privileged”.
Separate legal and commercial threads: avoid mixing legal questions with general business discussion in the same email chain. Consider separate emails or clearly separated sections.
Use lawyers deliberately (not performatively): copying a lawyer in does not automatically create privilege; conversely, not copying a lawyer in does not necessarily remove it. The key is whether the communication is part of the process of obtaining legal advice.
Control circulation: circulate legal-advice-related internal documents only within the client group (or on a strict need-to-know basis with legal input). Wider dissemination can create arguments about purpose and can complicate the privilege record.
Assume everything may be read by a judge: where possible, write only what you would be comfortable to be seen in open court if privilege is later challenged.
For fact-gathering from wider employees: treat material obtained from employees outside the client group as potentially disclosable; where possible, channel requests via in-house/external counsel.
Litigation privilege: litigation privilege may provide protection where legal advice privilege does not. Where a possible claim is in the offing, consider whether litigation privilege may apply, and keep contemporaneous records of purpose.
When using multi-addressee emails: consider whether you are primarily seeking legal input or business input from each recipient. If the dominant purpose for non-lawyer recipients is commercial, those communications may not be privileged.
Health warning: expect further appellate attention
This is a first-instance High Court decision on a topic that has generated substantial debate for more than two decades. The boundaries of legal advice privilege in corporate settings – particularly the “client group” concept stemming from Three Rivers (No 5) - have repeatedly been criticised and the Court of Appeal has previously signalled that Supreme Court consideration may ultimately be needed. For that reason, parties should treat this judgment as helpful but not necessarily the final word. Any internal privilege protocol should be resilient to a stricter approach (including the possibility that an appellate court could narrow or qualify the treatment of intra-client documents).
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Disclaimer: This publication is provided by Laytons LLP for informational purposes only. The information contained in this publication should not be construed as legal advice. Any questions or further information regarding the matters discussed in this publication can be directed to your regular contact at Laytons LLP or Laytons’ Disputes team.
