Update on English Legal Advice Privilege Following the Aabar Holdings v Glencore Judgment

In a recent judgment [1], the English High Court has confirmed that legal advice privilege (LAP) may apply to certain “intra-client” documents, that is, those sent between or created by members of the client group for the dominant purpose of seeking legal advice. Documents subject to LAP may be withheld from production in English legal proceedings, but their existence must generally be disclosed.

Previously, the position under English law was that LAP could only apply to (i) communications between lawyers and member(s) of the client group made for the dominant purpose of giving or receiving legal advice; (ii) documents disclosing the substance of such documents; or (iii) documents that were intended to be communicated to a lawyer by a member of the client group but that were not sent.

The High Court’s extension to such intra-client documents is a welcome clarification of the scope of LAP, which will provide certainty to in-house and external practitioners of all disciplines. For example, the judgment confirms that the following categories of documents should attract LAP:

• a client/member of the client group writing themselves a memorandum with notes to discuss in a subsequent meeting with their lawyer(s) 
• a client/member of the client group, who is not attending that meeting, emailing another member of the client group with information or thoughts in preparation for that meeting
• “fact-finding” documents created for the purposes of seeking legal advice, but only if created within the client group

We set out the key considerations following this judgment below.

Who, or what, is the “client group”?

Under English law, there is a distinction between the “client” for purposes of LAP and generally. Where the client is not an individual, not every employee, officer, or member of the entity will constitute the “client” in this scenario.

For LAP to arise, the relevant individual(s) must have been tasked with seeking and receiving advice on behalf of the organisation. The status of the individual (“however eminent he or she may be”)[2]  is not relevant: For example, the CEO, chairperson, president, etc. will not automatically be considered the “client” for the purposes of LAP. In the Three Rivers (No. 5) case, within the Bank of England only a specific inquiry unit was the ‘client’ (the Bingham Inquiry Unit), and not the Governor.

When dealing with external counsel, General Counsels and individuals within legal departments are likely to constitute the “client group” for the purposes of LAP. LAP may also apply to purely internal matters (e.g., where the relevant lawyer is the General Counsel advising their internal client), provided that the other requirements (in particular, the “client group”) of LAP are met. The Solicitors Regulation Authority publishes further guidance for English-qualified in-house counsels.

“Dominant purpose of seeking legal advice” 

Whether or not a document meets this test is a fact-specific issue, which will depend on the circumstances and context within which it was sent or created. However, for LAP it should be reasonably easy to identify whether a document meets this requirement, noting that it is a question of substance rather than form (i.e., the document must actually have that dominant purpose, not merely purport to).

Practical steps

A clearly defined client group, including where necessary nonlegal employees, will assist any claim to LAP. Non-members of the client group, even those within the organisation, are treated as third parties for the purposes of LAP.

Consider taking steps that can demonstrate that a particular group of individuals within the organisation has evidently been tasked with seeking and receiving advice on behalf of the organisation, for instance use of a shared or group email address, and ensuring that only specified individuals communicate with external counsel.

Fact-finding often requires non-legal individuals within the organisation. Consider whether and how those can be added to the client group and whether they are able to undertake the relevant enquiries on their own (or whether they will need assistance from other individuals/departments). The client group should not become so large that there is no meaningful distinction between it and the rest of the organisation.

General points to note and common pitfalls when asserting privilege

We set out below various issues with asserting privilege, including LAP, that we often come across.

• Copying internal/external counsel on a communication does not automatically make it privileged. 
• Fact-finding documents or internal analyses that are not intended to be shared with lawyers (e.g., board reports, internal memoranda) may not be privileged.
• Discussions of litigation/arbitration strategy, outcomes, etc. (including financial outcomes, e.g., reserving) are not themselves privileged — particularly if shared or created between non-members of the client group.
• Discussions about whether to settle a dispute are not themselves privileged (other than to the extent they disclose the substance of LAP material) — particularly between non-members of the client group.
• U.S. and English rules on legal professional privilege vary.
• Non-privileged documents attached to privileged communications (e.g., to external counsel) are not themselves privileged and will generally need to be disclosed (the relevant communication may be withheld/redacted).
• Inputting privileged and/or confidential information into public, open-source large language models (such as Chat GPT’s free version) will generally mean that those documents are no longer privileged and/or confidential.
• Where the claim to privilege requires legal proceedings to be reasonably in contemplation (i.e., litigation advice privilege), those proceedings must be adversarial (e.g., litigation/arbitration) and not investigative or inquisitorial (e.g., a regulatory investigation).

[1] Aabar Holdings S.à.r.l. v Glencore PLC [2026] EWHC 877 (Comm).

[2] Three Rivers (No. 5) 2003 WL 1610352, paragraph 31.