Commercial Court judgment on legal advice privilege and Three Rivers (No. 5)

16/04/26

Aabar Holdings S.á.r.l. & Ors v Glencore Plc [2026] EWHC 877 (Comm)

Picken J has delivered a second important judgment on legal professional privilege in the context of the ongoing securities litigation against Glencore Plc.

The judgment handed down today follows Picken J’s earlier judgment of 27 November 2024 ([2024] EWHC 3046 (Comm)), in which he held that the so-called ‘Shareholder Rule’ (which had previously been thought to prevent a company from claiming privilege against its own shareholders) should be regarded as no longer existing. Further information about that decision (with which the Privy Council subsequently agreed in Jardine Strategic Limited v Oasis Investments II Master Fund Ltd No. 2 [2025] UKPC 34) can be found here.

In this further judgment, Picken J addresses the scope of legal advice privilege and the extent to which this form of privilege applies to “internal communications between members of the client group and/or documents created by a member of the client group”.

The Judge rejected the Claimants’ argument that he was bound by the decision of the Court of Appeal in Three Rivers (No. 5) [2003] Q.B. 1556 to find that legal advice privilege applies only to communications between lawyer and client. Having reviewed the decision in Three Rivers (No.5) in detail, the Judge concluded at [25] that:

“… Three Rivers (No 5) was not concerned with the issue that is now before the Court, namely the extent to which legal advice privilege applies to internal communications between members of the client group and/or documents created by a member of the client group – as opposed to communications outside the client group (between members of the client group and non-members of the client group and/or documents created by non-members of the client group).”

Ultimately, the Judge agreed with Glencore that “the true position” was that legal advice privilege also 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”.  The Judge held that support for this view could be derived from the decision of the Court of Appeal in R (Jet2.com Ltd) v CAA [2020] QB 1027.

The Judge further agreed with Glencore’s submissions that, as matter of principle, legal advice privilege should apply to such documents – see at [52]-[60] and [61]:

“… my conclusion is that, as a matter of principle, it cannot be correct that the application of legal advice privilege to intra-client documents is as circumscribed as the Claimants maintain. I am clear, on the contrary, that there can be no justification for treating intra-client documents, created as part of the process of seeking legal advice or assistance and/or for which the intention to communicate with the lawyer accounts for the existence of the document, as not attracting legal advice privilege in circumstances where that privilege is available in relation to other documents that are materially similar. There is no justification for such a restrictive approach …”

The Judge ultimately concluded at [75] that:

“It follows, for reasons that I have sought to explain, that Glencore is entitled to assert legal advice privilege in respect of intra-client documents provided that those documents were created with the dominant purpose of seeking legal advice, and that the position is not as the Claimants have maintained, namely that legal advice privilege only applies to intra-client documents insofar as the documents disclose the substance of a communication between members of the client group and a lawyer made for the dominant purpose of giving or receiving legal advice or the document was intended to be a communication to a lawyer but was not sent.”

The judgment of Picken J does not directly address the other well-known issue raised by the decision of the Court of Appeal in Three Rivers No.5 (which concerns which employees of a company count as “the client” for the purposes of a claim to legal advice privilege). In SFO v ENRC [2018] EWCA Civ 2006, the Court of Appeal indicated that that issue would need to be reconsidered by the Supreme Court in an appropriate future case.

The judgment of Picken J can be found here.