Extension of Legal Advice Privilege? Three Rivers scope clarified
The High Court in Aabar Holdings SARL v Glencore plc [2026] EWHC 877 (Comm) (judgment handed down by Picken J on 16 April 2026) provided important clarification on the scope of legal advice privilege (“LAP”), holding that it can extend to certain internal (also referred to as “intra‑client”) communications, even when there is no lawyer directly involved.
This decision narrows the practical reach of the Three Rivers District Council v Governor and Company of the Bank of England (No 5) case (“Three Rivers”) and has significant implications for disclosure in complex commercial litigation. Three Rivers remains a binding and important authority, but its scope is narrower than is often assumed, particularly in the context of large corporates where legal advice is typically informed by input from multiple employees.
The Three Rivers Decision
The Court of Appeal’s decision in Three Rivers is well known for its restrictive view of who constitutes the “client” for the purposes of LAP. In that case, the Court held that only those individuals specifically authorised to seek and receive legal advice on the company’s behalf form part of the “client”. Communications between the company’s lawyers and other employees, even where necessary to enable the provision of legal advice, do not attract legal advice privilege.
As a result, factual information provided by employees outside the designated client group was treated as unprivileged, even if created for the purpose of obtaining legal advice.
Against that background, the recent judgement of Aabar is notable not because it overturns Three Rivers, but because it clarifies what that decision does not decide.
Case background
The issue arose in the context of disclosure. Aabar, the claimant, sought production of documents that had been shared only within Glencore’s client group, and not with external or internal lawyers.
Aabar argued that such documents could not attract LAP and relied heavily on the established interpretation of Three Rivers.
Glencore resisted disclosure, contending that the documents were created for the dominant purpose of seeking or facilitating legal advice, and should therefore be protected by privilege.
The question for the Court was whether LAP is confined strictly to lawyer–client communications, or whether it can extend further to internal client materials.
The High Court refused Aabar’s application for disclosure, holding that legal advice privilege can apply to intra‑client documents, provided their dominant purpose is seeking or facilitating legal advice.
In doing so, Picken J drew a clear distinction between the present case and Three Rivers.
Key takeaways from the judgment:
The Court confirmed that Three Rivers remains binding authority but clarified that its scope is narrower than is often assumed.
Picken J held that there is no principled basis for denying privilege to internal documents created or exchanged within a client group where their dominant purpose is:
- Identifying relevant facts,
- Analysing legal issues, or
- Preparing to seek or facilitate legal advice.
The Court rejected the notion that privilege only arises once a lawyer is involved.
What does this mean in practice?
Internal communications within a client group may be privileged even if no lawyer is copied or involved at the time. However, privilege will remain highly fact‑sensitive, particularly at disclosure stage. Careful thought should still be given to how internal documents are created, labelled, and circulated.
An appeal is anticipated, and further guidance on appeal may follow. Until then, Aabar v Glencore provides new clarification, narrowing the perceived reach of Three Rivers.
Where privilege or disclosure is likely to be contentious, early strategic advice can be critical. Our Commercial Dispute Resolution team can assist with both litigation strategy and the protection of privileged communications.