On 16 April 2026, the High Court in Aabar Holdings S.A.R.L. & Others v Glencore Plc & Others [2026] EWHC 877 (Comm) clarified and extended the scope of legal advice privilege. 

What you need to knowCommunications and documents generated between employees/agents within a “client group” created for the dominant purpose of obtaining legal advice are covered by legal advice privilege.Client group remains as an authorised group of employees responsible for seeking and receiving legal advice. The privilege will not extend to those outside the client group.Caution is required as this decision could be challenged on appeal or reconsidered by other High Court judges.Background 

This decision is part of the ongoing FSMA claims against Glencore by its shareholders and is Picken J’s second important decision on privilege following his earlier judgment ([2024] EWHC 3046 (Comm)) which overturned the “Shareholder Rule”, meaning that companies can assert privilege against their shareholders. 

Traditionally, legal advice privilege attaches to confidential communications between a client and their lawyer for the dominant purpose of seeking or giving legal advice. The law previously established by the Court of Appeal in Three Rivers (No. 5) v Bank of England (No. 5) [2003] QB 1556 was restrictive in that intra-client documents between the client group and the organisations lawyers were privileged but intra-client documents between lawyers and employees outside of the client group were not. 

In Glencore, the Claimants relying on Three Rivers (No. 5) argued that that legal advice privilege is only for intra-client documents that disclose communication between the client group and lawyers, made for the dominant purpose of seeking legal advice. 

Glencore, on the other hand, argued that legal advice privilege should apply to any intra-client document created or sent between members of the client group provided they were for the dominant purpose of seeking legal advice. It asserted that this question had not been determined by Three Rivers (No 5), as that case involved non-client group material. In any event, Glencore argued that intra-client documents should be privileged in principle as they are the mirror image of lawyers’ working papers, which are privileged.

The decision 

Picken J rejected the Claimants’ argument, drawing a clear distinction between Three Rivers (No. 5) and the matter before him. The Judge considered that Three Rivers (No. 5) concerned intra-client documents shared outside of the client group, whereas Glencore concerned intra-client documents shared inside the client group. Therefore, Picken J could depart from the precedent set in Three Rivers (No. 5) in finding the legal privilege “applies to any intra-client document which is sent between or created by members of the “client group” for the dominant purpose of seeking legal advice.”

In reaching his decision, Picken J clarified that when circulated within a client group for the dominant purpose of seeking legal advice, the following categories of documents are privileged:

Documents or communications by a member of the client group identifying an issue on which legal advice will be sought, even if advice has not yet been sought from a lawyer. For example, a draft letter to counsel.Documents or communications prepared to identify facts to share with a lawyer, where the document itself is not intended to be sent to the lawyer. For example, preparatory notes for a meeting with counsel. Alternatively, correspondence from a member of the client group sharing thoughts or information in advance of a meeting between the client group and a lawyer that they will not personally be attending.Our comment

This decision marks a shift in the law of legal advice privilege and is no doubt a welcome decision for in-house legal teams, as it recognises legal advice is rarely sought and considered in isolation.  However, as a first instance decision, it should be treated with caution as it could be challenged on appeal or reconsidered by other High Court judges.  We will be watching for any further developments.