In Aabar Holdings SARL v Glencore Plc [2026] EWHC 877 (Comm) (“Aabar”), delivered on 16 April 2026, the High Court of England & Wales found that legal advice privilege can apply to “intra-client” communications (i.e. internal communications between members of a “client group” within an organisation) where those communications are prepared for the dominant purpose of seeking legal advice.
In reaching its decision, the court found that the landmark decision in Three Rivers DC v Bank of England (No.5) [2003] QB 1556 (“Three Rivers No 5”) had not addressed “intra-client” communications and had been concerned only with “non-client” communications (i.e. communications exchanged between members of a “client group” within an organisation and non-members of the client group). Therefore, the court considered that it was not bound by the decision of the Court of Appeal in Three Rivers No 5.
Although currently the subject of an appeal to the English Court of Appeal, as a first instance ruling, the decision in Aabar is not binding on other UK High Courts. The issue of whether legal advice privilege attaches to intra-client communications has not been considered to date by the Irish courts and, although the decision is not binding on the Irish courts, pending the outcome of the appeal, it may be persuasive in the Irish context, particularly in the absence of definitive Irish authority on the point.
What was the background to the decision in Aabar v Glencore?
The proceedings related to a securities class action against Glencore and some of its former directors. During the course of the litigation, Glencore informed the claimants that it had been approaching its disclosure obligations on the basis that all communications created for the dominant purpose of seeking and/or receiving legal advice were privileged, effectively treating every employee as “the client” for privilege purposes. Following the claimants’ challenge to that approach on the basis of Three Rivers No 5, Glencore refined its position but maintained that it was entitled to assert privilege over communications between members of the “client group” on the basis that the decision in Three Rivers No 5 was concerned only with communications between a client group and non-members of the client group, rather than intra-client communications.
The claimants took issue with this position, contending that legal advice privilege only applied to:
(i) communications between a lawyer and a client;
(ii) documents that evidence such communications; and
(iii) communications that were intended to be between a client and a lawyer even if not actually issued.
What did the English High Court decide on intra-client legal advice privilege?
The court held that Glencore was 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. The court found that the discrete issue which was before it had not been considered previously in any of the authorities relied upon by the claimants, including Three Rivers No 5.
The court agreed with Glencore 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”.
The court also observed that “if…a lawyer’s working papers are the subject of legal advice privilege, it is difficult to see why what are, in effect, a client’s working papers should not also attract such privilege. They are the mirror image of each other and, as such, should be treated in the same way for legal advice privilege purposes”. The court cited examples such as a client preparing a memo for themselves in anticipation of a meeting with their lawyer, or one member of the client group emailing another member with thoughts or information in preparation for a meeting with the lawyer.
What does Aabar v Glencore mean for legal advice privilege in Ireland?
Subject to the outcome of the appeal to the English Court of Appeal, from a UK perspective, Aabar is no doubt an important statement of English law and brings clarity as to how intra-client working papers ought to be treated from a legal privilege perspective, at least for now. However, Three Rivers No 5 remains the decisive UK authority in defining the “client” for privilege purposes in the corporate context, and the Aabar decision does not upset that.
It remains to be seen how Aabar will be treated by the Irish courts, which have not yet considered the question which was before the court in Aabar. Decisions of the UK courts are non-binding on the Irish courts, but provide persuasive authority. That said, the Irish courts have not always followed the UK authorities dealing with issues of legal privilege (see for example the decision of the Irish High Court in Ryanair v Channel 4 [2018] 1 IR 734 where the Irish court did not adopt the same narrow interpretation of “client” in the corporate context as in Three Rivers No 5).
Until such time as there is clear Irish authority on the point, organisations should adopt a cautious approach in relation to intra-client documents and communications, and clearly document where it is intended that such documents are to be regarded as legally privileged (to the extent applicable), including the appropriate use of labels.
For more information in relation to the above, please contact Karen Reynolds, Connor Cassidy, or your usual Matheson contact.
