Court says some intra-client communications may attract legal advice privilege when created to prepare for seeking legal advice
The High Court has revisited the scope of legal advice privilege in the context of intra-client communications, providing further guidance on how privilege applies within large corporate structures.
In Aabar Holdings SARL v Glencore Plc, the Commercial Court addressed whether internal communications between employees of a corporate client, which did not directly involve legal advisers, could nonetheless attract legal advice privilege.
The case arose in the context of disclosure, where the claimant sought access to internal documents said to fall outside the scope of privilege on the basis that they were not communications between lawyer and client.
The court examined the established principles governing legal advice privilege, including the requirement that communications must be made for the dominant purpose of giving or receiving legal advice, and the restrictive definition of the “client” identified in Three Rivers District Council v Bank of England (No 5).
Against that background, the court considered whether internal documents generated within an organisation could form part of the process of seeking legal advice.
Mr Justice Picken said that given a lawyer’s working papers were the subject of privilege, “it is difficult to see why what are, in effect, a client’s working papers should not also attract such privilege”.
Given that, Picken J said, it “would make no sense for legal advice privilege not to be available in respect of intra-client 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”.
He went on: “There can be no distinction in principle between, on the one hand, an engagement or instruction letter that identifies the issue on which legal advice will be sought and, on the other hand, another document or communication created by the client which identifies the issue on which legal advice will be sought.”
The judge further held that it would not make sense for privilege not to apply to intra-client 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 the lawyer”.
He added: “An example might be a client, the day before he or she is due to meet his lawyer for the first time, writing himself or herself a memorandum with notes for the meeting.
“Another example might be one member of the client group, who will not be attending the meeting with the lawyer, emailing another member of the client group with information or thoughts in preparation for the meeting.”
The court rejected a rigid approach that would exclude such documents solely because they were not sent to or received from legal advisers, recognising the practical realities of how legal advice is prepared within organisations.
However, it emphasised that privilege does not extend to all intra-client communications, with the dominant purpose test remaining central to the analysis.
The judgment therefore maintains the limitations established by Three Rivers (No 5), while adopting a more fact-sensitive and commercially realistic approach to the application of those principles.
The decision is likely to be of practical significance in disclosure exercises, particularly in complex commercial litigation, where internal communications form a substantial part of the documentary record.