You can’t step in the same (Three) Rivers twice: High Court reevaluates privilege in intra-client communications

In a significant decision handed down on 16 April 2026 (Aabar Holdings SARL & Ors v Glencore PLC [2026] EWHC 877 (Comm)), the High Court has given new guidance on the scope of legal advice privilege available to corporations in light of Three Rivers (No.5) – addressing arguably the most important (and it seems most misunderstood) judgment regarding privilege in the 21^st century. 

In short, the High Court confirmed that legal advice privilege covers “intra-client” communications – that is, communications made between employees/agents within a “client group” of a corporation with a view to seeking or receiving legal advice. The decision upends conventional wisdom that communications between non-lawyers are subject to legal advice privilege only if they reveal the nature or content of the legal advice sought. 

Background

Legal advice privilege was previously understood to protect: 

1. confidential communications, passing between lawyer and client, made for the dominant purpose of giving and receiving legal advice;

2. lawyers’ working papers; and

3. a limited category of confidential communications that would reveal the nature and content of the legal advice. The third category includes, for example, excerpts of board minutes that refer to legal advice received.

Where the client is a company, not every employee/agent will be part of the “client” for privilege purposes. Rather, the Court of Appeal decided in Three Rivers (No.5) that the “client” is the group of employees/agents authorised to seek and receive legal advice on behalf of the company. Communications between the “client” group and other employees/agents of the company, even if confidential, are not (generally) privileged. 

But what about communications between members of the client group? Conventional wisdom (as well as commentary in textbooks, practitioner texts, and guidance from professional regulators) had been that those communications were privileged only if they fell within the third category above – i.e. they revealed legal advice. 

However, Glencore Plc challenged that approach in the ongoing securities class action claim proceeding against it in the Commercial Court, refusing to give disclosure of any internal “client group” communications made for the dominant purpose of seeking or receiving legal advice. The Claimants sought specific disclosure and the application was heard by Picken J (fresh from his equally significant decision, in the same proceedings, which in effect abolished the so-called Shareholder Rule. Read our earlier article here.

Intra-client communications

Picken J carefully scrutinised the leading authorities on the scope of legal advice privilege as it applied between employees/agents. In each instance, he found that those decisions were – on proper analysis – concerned only with the distinction between documents passing between client and lawyer (which were subject to legal advice privilege) and those passing between a client and third party (which were not). The latter category included communications between employees that formed part of the client group and other, non-client employees.

The Judge identified that “intra-client” communications – i.e., internal communications between members of the client group – were a third category of communications that had not been addressed in the authorities.

As such, Picken J considered that he was not bound by any precedent and could consider the point as a matter of first impression. He held that there was no distinction in principle between early-stage communications with a lawyer and equivalent documents created internally within a client group. Nor did it make sense to draw a distinction based on whether a document was intended to be sent to a lawyer or not. In either case, intra-client communications would be likely to reveal the substance of subsequent communications in much the same way as client to lawyer communications. There was, similarly, no good reason to extend privilege to lawyers’ working papers alone without protecting the equivalent set of client documents.

Given those considerations, he held that intra-client communications were subject to legal advice privilege if they were created for the dominant purpose of seeking legal advice.

What does this mean for companies in litigation? 

This decision is a welcome, and common sense, approach to the question of privilege for companies involved in litigation. There is now greater certainty for those responsible instructing lawyers on behalf of companies to discuss the scope of legal advice to be sought and its implications – in a modern era where many such discussions leave a written record – with greater certainty that their discussions will be privileged. 

That said, the judgment does not disturb the essential decision in Three Rivers (No.5) and therefore leaves in place a potentially arbitrary cliff-edge between privileged and non-privileged communications – depending on which groups of employees/agents of a single company are involved. It is difficult to see the underlying logic of using “authority to instruct lawyers” as the threshold characteristic for membership of the ‘client’ group – especially given the now even greater significance of the distinction. 

In the short-term, the decision is unlikely to materially alter best practice for parties seeking legal advice. Clients should continue to ensure that sensitive communications are sent to or from a lawyer wherever possible (or that there is a parallel claim to litigation privilege) and minimise communications outside the client group.

As previously, there will be a difficult decision for corporate clients between defining a narrow client group with an increased risk of out-of-group communication, and drawing a wide group that a Court may not accept (regardless of the grounds). However, where a client group comprises or includes non-lawyers, there is now a greater chance of asserting privilege over potentially very sensitive documents. 

What’s next? 

Mr Justice Picken’s decision relies on a very close and technical reading of the authorities, including bypassing what had previously been understood as limitations on when privilege would arise by finding that the relevant language was descriptive, non-exhaustive, non-specific to intra-client documents, or that argument had not addressed the status of those documents specifically. There may be challenges to the judgment on that basis.

We expect that this decision is unlikely to be the final say in the matter – it may well be appealed or considered again in subsequent decisions. In the meantime, the intra-client group analysis can more safely be relied on as a second-line argument in the event of challenge (for example, where the primary position is a claim to litigation privilege). 

More broadly, the judgment may increase the pressure for the Supreme Court to address Three Rivers (No 5), which was recently described by the Court of Appeal as “unsafe” (in the Jet2.com case). Picken J chose to highlight Glencore’s abortive challenge to Three Rivers (No 5), and it is easy to imagine that he would have been sympathetic to a broader argument – if he was not constrained by binding Court of Appeal authority. Nevertheless, it is rare for privilege decisions to reach the Supreme Court and there are considerable practical and strategic obstacles to pursuing an interim decision on evidence to that extent. In the meantime, we may well see more decisions attempting to distinguish Three Rivers (No 5) or otherwise seeking to extend the scope of legal advice privilege, as parties seek to anticipate precisely where the new perimeter will settle.