Aabar Holdings SARL v Glencore Plc [2026] EWHC 877

Glencore and the Claimants disputed the scope of legal advice privilege over intra-client documents. Picken J held that privilege extends to communications between members of the client group created for the dominant purpose of seeking legal advice, even where no lawyer is party to them.

Facts

This judgment forms part of ongoing proceedings between Aabar Holdings S.à.r.l. and others against Glencore Plc and two individual defendants. Following an earlier judgment by Picken J ([2024] EWHC 3046 (Comm)) abolishing the Shareholder Rule (subsequently endorsed by the Privy Council in Jardine Strategic Limited v Oasis Investments II Master Fund Ltd [2025] UKPC 34), the court was asked to determine a further privilege-related issue concerning the scope of legal advice privilege over intra-client communications.

Glencore, in giving Extended Disclosure from April 2025, had initially approached its disclosure on the basis that Three Rivers (No 5) [2003] QB 1556 was wrongly decided, treating all communications made for the dominant purpose of seeking or receiving legal advice as privileged. Following challenge from the Claimants, Glencore modified its stance in January 2026, ceasing to treat every employee as ‘the client’ and producing 885 previously withheld documents and re-producing 290 documents. However, Glencore continued to assert privilege over communications between members of the ‘client group’ where no lawyer was a party.

Issues

The central issue was whether legal advice privilege applies to intra-client documents, i.e. communications between members of the client group (or documents created by a member of the client group) which are not between client and lawyer, where the dominant purpose is to seek legal advice. The Claimants argued such privilege was unavailable (save where the document discloses the substance of privileged communications or is an ‘inchoate communication’). Glencore argued privilege extends to any intra-client document created for the dominant purpose of seeking legal advice.

Arguments

Claimants’ submissions (Mr Kramer KC)

Mr Kramer submitted that legal advice privilege applies only to communications between lawyer and client, relying on Three Rivers (No 5), in particular Longmore LJ’s statement at [21] that such privilege:

could not be claimed for documents other than those passing between the client and his legal advisers and evidence of the contents of such communications

He relied on Lord Carswell’s characterisation in Three Rivers (No 6) [2005] 1 AC 610 at [72], Lord Scott at [10], Lord Rodger at [50], and subsequent authorities including SFO v ENRC [2019] 1 WLR 791, R (Jet2.com Ltd) v CAA [2020] QB 1027, National Westminster Bank Plc v Rabobank Nederland [2006] EWHC 2332, and In re RBS Rights Litigation [2017] 1 WLR 1991, together with leading textbooks by Thanki and Passmore.

Glencore’s submissions (Mr Singla KC)

Mr Singla submitted that Three Rivers (No 5) was concerned exclusively with non-client (third party) documents and did not address the intra-client position. As a matter of principle, legal advice privilege should cover intra-client documents created for the dominant purpose of seeking legal advice, mirroring the recognised protection afforded to lawyers’ working papers.

Judgment

Picken J rejected the Claimants’ position and held that legal advice privilege applies to any intra-client document sent between or created by members of the client group for the dominant purpose of seeking legal advice.

Analysis of Three Rivers (No 5)

The judge conducted a detailed examination of Three Rivers (No 5), concluding that the case concerned only the distinction between the Bingham Inquiry Unit (treated as the client) and other Bank of England employees (treated as third parties). The four categories of documents identified by Longmore LJ at [4] all concerned documents prepared by non-BIU Bank employees. The ratio decidendi was therefore confined to the non-client/third party position. Although the order made by Tomlinson J at first instance may have included some intra-client documents, no argument was addressed on that category and the reasoning was silent on it.

Review of earlier and later authorities

Picken J examined the 19th century authorities cited in Three Rivers (No 5) — Greenough v Gaskell (1833), Reece v Trye (1846), Anderson v Bank of British Columbia (1876), Southwark and Vauxhall Water Company v Quick (1878), and Wheeler v Le Marchant (1881) — and concluded that none addressed intra-client documents. References to lawyer/client communications in these cases could not be read as foreclosing the application of privilege to intra-client documents.

Turning to Three Rivers (No 6), the judge noted Lord Scott’s explicit recognition at [20]-[21] that the employee/client issue did not arise on the appeal and that the House declined to express views on it. Lord Scott’s references to lawyer/client communications described the quintessential category and did not set out an exhaustive statement.

In SFO v ENRC, Sir Geoffrey Vos C’s analysis confirmed that the ratio of Three Rivers (No 5) concerned the employee/client point, not intra-client documents. National Westminster Bank Plc v Rabobank Nederland and In re RBS Rights Litigation were not intra-client cases. The academic commentary in Passmore and Thanki focused on the ratio (non-client documents) rather than intra-client documents.

Principle

As a matter of principle, the judge found no justification for the Claimants’ restrictive approach. There is no sensible distinction between an instruction letter identifying the issue on which advice will be sought (privileged) and another client-created document identifying the same issue (on the Claimants’ case, not privileged). Similarly, there can be no principled distinction between an intra-client document intended to be communicated to a lawyer and one containing information intended to be communicated to a lawyer but not itself sent. Just as lawyers’ working papers attract privilege, so too should a client’s working papers.

Jet2.com

The judge derived support from Jet2.com, where Hickinbottom LJ at [47] referred to documents or materials between an employee and a co-employee, and at [100] addressed multi-addressee emails including those not involving lawyers where the dominant purpose is to instruct the lawyer. Picken J rejected Mr Kramer’s submission that these observations were obiter or reflected ‘merely infelicitous drafting’.

Implications

The decision clarifies that Three Rivers (No 5) does not restrict legal advice privilege over intra-client communications. Corporate clients may assert legal advice privilege over internal communications between members of the client group, where those communications were created with the dominant purpose of seeking legal advice, even where no lawyer is party to them.

The decision is of significant practical importance for corporate litigants and their advisers, particularly in the disclosure context. It reinforces the distinction between the ‘client group’ issue (the narrow ratio of Three Rivers (No 5), which remains binding pending any Supreme Court intervention) and the separate question of intra-client communications, which fall outside that ratio.

The scope of the ruling is limited: privilege will only attach to intra-client documents where the dominant purpose test is satisfied. It does not expand privilege to communications involving third parties or non-client employees, where Three Rivers (No 5) continues to apply. The decision is a first instance judgment of the Commercial Court and may be subject to appellate review, but it provides a reasoned analytical framework reconciling the authorities with the practical realities of corporate legal advice-seeking.

Verdict: The court held in favour of Glencore, ruling that Glencore is entitled to assert legal advice privilege in respect of intra-client documents provided those documents were created with the dominant purpose of seeking legal advice. The Claimants’ narrower formulation of the scope of legal advice privilege was rejected.

Source: Aabar Holdings SARL v Glencore Plc [2026] EWHC 877