A View From The Exchange: Legal advice privilege and intra-client group communications
Having dispensed with what is known as the 'shareholder rule' in a previous judgment in the same case late last year, Mr Justice Picken has seized the opportunity to clarify the application and scope of privilege again.
This time it concerns legal advice privilege and the question of whether communications within a group of client representatives, not involving a lawyer, can be privileged.
What is the client group?
It is worth resetting the context for the decision. When a corporate entity needs legal advice, it is the entity itself - not the individuals who instruct solicitors on its behalf - that is the client. Those individuals are simply its representatives. Post Three Rivers (No. 5), not every individual that works for the corporate will be lucky enough to be in the esteemed gang that is the client group. Only those that are authorised to seek and receive legal advice on a given situation will be in the client group. Why does that matter? Only communications between the client group and a lawyer can be subject to legal advice privilege – communications between those outside the client group and a lawyer ordinarily won't be, and therefore fall to be disclosed in any dispute where they are relevant unless they are subject to litigation privilege.
And now again to Mr Justice Picken.
The Decision
On 16 April 2026, in a first-instance decision in the Commercial Court (Aabar Holdings S.à.r.l. & Ors v Glencore Plc [2026] EWHC 877 (Comm)), Mr Justice Picken held that legal advice privilege is not confined to communications passing between lawyer and client representatives, but extends to any intra-client group document (a document sent between or created by members of the client group) where the dominant purpose of that document was to seek legal advice.
He reached this conclusion having considered the position as a matter of principle, having found himself unfettered by any relevant binding authority. In doing so, he distinguished Three Rivers (No. 5) on the basis that that case was concerned with extra-client group documents and, therefore, was not relevant to the question in issue of whether intra-client group documents are privileged.
Practical implications
Whilst the decision is a welcome clarification, unfortunately it will not solve many of the significant issues concerning privilege that in-house legal teams in large corporates have to grapple with:
- as above, the narrow definition of "the client" for legal advice privilege purposes provided for in Three Rivers (No. 5) persists, therefore, only documents involving those employees specifically authorised with seeking and receiving legal advice will reliably benefit from legal advice privilege. Given the difficulties with applying this definition in practice in large businesses, for example because the information relevant to legal advice being sought is often held by employees outside the client group, the need for the Supreme Court to revisit this point or legislative intervention remains as acute as ever. Many clients elect not to define a client group given these complexities, so there will still be a risk that the after-the-event analysis of communications considers that some or all of a group of employees were not in fact client representatives for the purposes of the test.
- the dominant purpose test remains key. Mr Justice Picken was clear that it is not sufficient for a document merely to have been created in a context where legal advice was being sought, rather the dominant purpose of the specific document must be to seek legal advice. The dominant purpose test will continue to present risk and uncertainty for clients where documents often have more than one purpose, by necessity.
Other author: Edward Fyson, Trainee
