Legal advice privilege – an update

Nichola Evans, Partner

A recent High Court decision has given valuable guidance on the extent of legal advice privilege (“LAP”) and the documents that it applies to. The judgment will be welcomed by in house legal counsel for providing clarification in what was considered a grey area – and takes a very pragmatic view of what should be considered privileged. The documents which would now be considered as subject to privilege have been widened.

LAP protects communications between a client and their lawyer, including in house counsel. It covers documents which were created for the dominant purpose of giving or receiving legal advice and covers both contentious and non-contentious business.

In Aabar Holdings S.á.r.l. & Ors v Glencore Plc [2026] EWHC 877 (Comm) Mr Justice Picken looked at the question whether LAP applied to “internal communications between members of the client group and/or documents created by a member of the client group”. Therefore the question was posed as to whether privilege applies to all working papers regardless of whether they are then sent to a lawyer.

Mr Justice Picken held that privilege did apply to the wider working papers and said “it is difficult to see why what are, in effect, a client’s working papers should not also attract such privilege” as they were “the mirror image of each other”.

He went on to say that 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”.

Therefore “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 gave a couple of examples of what these documents could look like: “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.”

Whilst the judgment is useful we still do not have clarification as to which employees would be considered the “client” in this situation and that would need to be decided by the Supreme Court. In our view a prudent, risk averse approach should be taken in companies when preparing paperwork so as to avoid a potential challenge to privilege.

If you require assistance, get in touch with our team at [email protected].