In a judgment handed down on 16 April 2026 (the Judgment), the English Commercial Court (the Court) in Aabar Holdings SARL & Others v Glencore PLC & Ors¹ held that certain intra-client communications and documents may attract legal advice privilege where they are created for the dominant purpose of obtaining legal advice, providing welcome clarity in an area of prior uncertainty. The decision confirms that privilege may extend to a broader range of internal documents than had often been assumed.

The Judgment follows the Court’s earlier decision of 27 November 2024,² in which it held that the so-called “Shareholder Rule” (long understood as preventing a company from asserting privilege against its own shareholders) does not exist in English law. That conclusion was subsequently endorsed by the Privy Council in Jardine Strategic Limited v Oasis Investments II Master Fund Ltd No. 2,³ which held that the rule must be abandoned.

Background

The principal issue before the Court was whether legal advice privilege is confined to communications passing directly between lawyer and client, or whether it may also extend to certain internal communications generated within the client organisation as part of the process of obtaining legal advice. In particular, the Court considered the effect of the Court of Appeal’s decision in Three Rivers District Council v Bank of England (No 5),⁴ which has often been understood as authority for a narrower approach to legal advice privilege.

In Three Rivers (No 5), the Court held that advice privilege attached only to communications between the organisation’s lawyers and the designated “client group”—namely, those employees authorised to seek and receive legal advice on the organisation’s behalf. Communications involving employees outside that client group were held not to attract privilege.

Relying heavily on Three Rivers (No 5), the Claimants in Glencore argued that internal documents would attract privilege only where they recorded the substance of communications with lawyers or amounted to draft or intended communications to lawyers that were never ultimately sent. Defendant Glencore contended for a broader approach, submitting that privilege may extend to communications passing between members within the authorised client group, and to documents created by them, where those documents were created for the dominant purpose of obtaining legal advice. Glencore argued that this issue had not been decided in Three Rivers (No 5), which concerned communications involving persons outside the relevant client group rather than purely internal client materials.

The Decision

The Court accepted Glencore’s position. The Court held that legal advice privilege may extend to intra-client communications and documents created by members of the client group where they were produced for the dominant purpose of seeking legal advice.

The Judge also considered that conclusion correct as a matter of principle. Picken J held that there was no sound basis for denying privilege to internal documents created as part of the process of seeking legal advice, or whose existence was explained by the intention to obtain such advice, where materially similar documents would otherwise attract privilege.

In reaching that conclusion, the Court also drew support from R (Jet2.com Ltd) v Civil Aviation Authority,⁵ in which the Court of Appeal emphasised the importance of legal advice privilege and the role of dominant purpose in this context.

Practical Significance

This decision is likely to be welcomed by corporates, financial institutions and listed companies involved in disputes, investigations or regulatory matters. In practice, organisations frequently need to gather facts internally, discuss issues amongst authorised personnel and prepare materials for external counsel before legal advice can be sought effectively. The Judgment recognises that those internal steps may form part of the continuum of communications involved in seeking and obtaining legal advice.

The ruling does not, however, mean that all internal communications will attract privilege. Protection will depend on whether the document was created for the dominant purpose of seeking legal advice and whether it falls within the relevant client group. Ordinary commercial discussions, operational communications or documents created for broader business purposes may not attract privilege.

The decision also underlines the importance of clearly identifying who is authorised to seek and receive legal advice on behalf of an organisation, limiting unnecessary circulation of sensitive materials, and maintaining careful records as to the purpose for which internal documents are created.

Together with the Court’s earlier rejection of the Shareholder Rule, this Judgment continues a trend toward a more practical and commercially realistic approach to legal professional privilege. The decision is therefore likely to be of considerable interest to companies involved in disputes, investigations and disclosure exercises, and will likely shape future privilege challenges in complex litigation.

Our international disputes team is on hand to assist with any queries following this decision.

The Judgment can be found here: Aabar Holdings SARL & Others v Glencore Plc and Others [2026] EWHC 877 (Comm).

^{1 [2026] EWHC 877 (Comm).}

^{2 [2024] EWHC 3046 (Comm).}

^{3 [2025] UKPC 34.}

^{4 [2003] QB 1556.}

^{5 [2020] QB 1027.}