Welcome clarification on the scope of legal advice privilege: Aabar Holdings S.À.R.L and Others v Glencore Plc and Others [2026] EWHC 877

In Aabar Holdings S.À.R.L and Others v Glencore Plc and Others [2026] EWHC 877, the High Court clarified that legal advice privilege (LAP) extends to documents created by, and communications exclusively within, members of the "client group" for the dominant purpose of seeking/receiving legal advice, including before a lawyer is engaged.

The decision provides welcome clarification on the current scope of LAP. However, organisations should still exercise caution when obtaining information from the wider business when seeking legal advice, as the much-criticised limitations regarding which employees fall within the "client group" continue to apply.

The scope of LAP

The judgment confirms that LAP is not limited to the orthodox examples of:

• communications between the client and a lawyer for the dominant purpose of seeking/receiving legal advice; or

• where documents are not sent to/produced by the lawyer, documents that disclose the content of those privileged client/lawyer communications or were intended to be communicated with a lawyer.

Instead, the court confirmed that "…legal advice 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”[1] – including those that were not exchanged with a lawyer, nor revealed the contents of legal advice.

The court held that these "intra-client" documents would include:

• Issue identification documents "whose dominant purpose is to identify an issue on which the client proposes to seek advice from a lawyer but at a time at which advice has not yet been sought from the lawyer in relation to the issue identified"[2]. The court clarified that no distinction should be drawn between engagement letters and similar documents that identify the issues on which the "client group" seeks legal advice.

• Fact gathering documents "whose dominant purpose is to identify facts that the client proposes to communicate to a lawyer for the purpose of seeking legal advice, but where the document itself is not intended to be sent to a lawyer".[3] For example, an internal memorandum shared between employees within the "client group" the contents of which are intended to be communicated to a lawyer for the dominant purpose of seeking legal advice.

• Working papers created by the "client group" for the dominant purpose of seeking/receiving legal advice on the basis they are "mirror image" to a lawyer's working papers.[4]

Limitations

It is important to remember that this decision does not extend LAP to all documents created by company employees for the dominant purpose of legal advice.

In particular, the decision does not alter the controversial principle from Three Rivers (No 5) that confines the scope of the "client" for the purpose of LAP to only those employees/representatives who are specifically authorised to seek/receive legal advice. References to "client group" and "intra-client" documents/communications in Aabar must be read subject to that (often impracticably) narrow class of persons within a corporation.

In practice, this means that communications with, or documents created by, employees outside of the "client group" may still not benefit from LAP – even where, for example, they were created for the purpose of providing the information necessary for the company to obtain legal advice.

It is therefore prudent to clearly identify which individuals are members of the "client group" and ensure that all communications and documents created remain within that clearly defined group of employees in order to be able to assert LAP.

Key takeaways

The court's pragmatic approach in Aabar is helpful for corporations when considering how LAP applies to documents and communications created by members of their "client group" – particularly prior to formally seeking legal advice, either internally or externally.

Businesses who conduct internal investigations may find this decision of particular practical value. For example, investigation documents and communications generated by and shared within non-lawyer members of the "client group" (such as individuals within a risk and compliance team) may attract LAP if the dominant purpose of those documents is to identify facts or issues on which the "client group" intends to seek legal advice.

However, caution should still be exercised when extrapolating the principles of Aabar in practice. In particular:

• As Aabar does not change the definition of the "client group" under Three Rivers (No 5) documents created outside of that narrow group will generally not be covered by LAP – even where they are created for the dominant purpose of obtaining legal advice. It is therefore prudent to:
  
  
  • clearly identify which individuals are members of the "client group" authorised to seek/obtain legal advice;
  • where information is required from specific individuals within the business to obtain that advice, include those individuals within the authorised "client group"; and
  • ensure (insofar as practicable) that all communications and documents created remain within that clearly defined group.
• Privilege is by its very nature fact and document specific; privilege principles do not exist in an intellectual vacuum. Whilst the principles of a decision can be of broader significance to how privilege operates in practice, each judgment should be viewed in the context of the specific category of documents and dispute between the parties concerned.In practice, asserting LAP over a document will always involve a high degree of judgment and factual enquiry.

Aabar is unlikely to substantially broaden the scope of documents over which LAP is claimed in practice. While many will welcome the decision as a helpful and clarificatory contribution to the body of privilege case law, others view this as an opportunity missed to address the impracticality of the much criticised "client group" principle for LAP, presumably a nettle left to be grasped by the appellate courts when the opportunity arises.