A recent Commercial Court decision has reopened debate about the scope of legal advice in a corporate context, challenging long-held assumptions about which internal documents are protected from disclosure.
In the landmark case of Aabar Holdings SARL & Ors v Glencore PLC & Ors, the High Court ruled that legal advice privilege extends to “intra-client” communication such as internal memos, preparatory drafts, and working papers created by members of a client group for the dominant purpose of seeking legal advice, even if those documents are never actually sent to a lawyer. For over twenty years, the restrictive framework of the 2003 Three Rivers (No 5) decision led legal practitioners to believe that privilege was strictly confined to direct communications passing between legal advisers and that specific employees authorised to instruct them. By determining that a client’s internal preparatory work is the “mirror image” of a lawyer’s privileged working papers, this ruling represents a significant expansion of the law. It offers greater “safe space” protection for a wider class of internal corporate materials and modern preparatory methods, including the use of AI tools, shielding them from being forced into the open during litigation.
Background of the Dispute
The issue arose in the course of disclosure. The claimants challenged Glencore’s attempt to withhold documents exchanged internally within the relevant client group where no lawyer was party to the communication. Their position was that such material should only remain protected where it recorded the substance of a privileged communication with lawyers, or where it had been intended for transmission to lawyers but was never in fact sent. Glencore argued instead that privilege could also attach to internal client-group documents created as part of the process of obtaining legal advice. The dispute therefore required the Court to address a question that had long been treated as uncertain: whether purely internal documents generated within the client group could themselves attract legal advice privilege.
Picken J rejected the claimants’ narrower approach. He held that legal advice privilege applies to intra-client documents sent between, or created by, members of the client group where those documents were created for the dominant purpose of seeking legal advice.
In other words, the protection is not necessarily lost simply because a document has not yet left the client group or because no lawyer appears on its face. What matters is whether the document forms part of the legal advice-seeking exercise. On that basis, privilege was capable of attaching not only to draft instructions and material intended to be sent to lawyers, but also to internal notes and communications identifying issues, organising facts or otherwise preparing for the request for advice.
A central feature of the judgment is its treatment of Three Rivers (No 5). That case has long cast a shadow over legal advice privilege in the corporate world, particularly because of its narrow treatment of who counts as “the client” and the extent to which communications involving employees outside that narrow group are protected.
In Aabar, however, the Court held that Three Rivers (No 5) was not concerned with the point now before it. On Picken J’s reading, Three Rivers (No 5) addressed communications involving persons outside the relevant client group, not internal communications within that group. The distinction is important. The judgment treats the earlier authority as dealing with the boundary between client and non-client material, rather than as laying down an exhaustive rule that privilege can only arise where a lawyer is directly involved in the communication.
That reading allowed the Court to conclude that there was no authority preventing privilege from applying to intra-client documents. Picken J considered that, once Three Rivers (No 5) was properly understood in that narrower way, the real question became one of principle. On that question, he found the claimants’ position difficult to sustain. If a draft communication to a lawyer can attract privilege, and if a lawyer’s own working papers can do the same, there is little logic in denying protection to materially similar documents created on the client side for the same legal purpose. The judge described the client’s internal preparatory papers as the “mirror image” of the lawyer’s own privileged working papers and held that there was no justification for treating them differently.
The Takeaway
The reasoning is important because it reflects how legal advice is actually sought in modern organisations. In large corporate structures, legal issues are rarely identified and formulated in a single direct exchange between one authorised individual and external counsel. More often, facts are gathered internally, chronology and background are assembled, and draft issues are prepared before a formal instruction is sent. The judgment recognises that this internal preparatory stage may itself form part of the legal advice process. It therefore brings the law closer to commercial reality, while still requiring a proper legal purpose behind the document in question.
The judgment also drew support from Jet2.com, which recognised that legal advice privilege is not limited to the lawyer’s advice itself, but can extend to internal communications passing on, considering, or applying that advice. In Aabar, Picken J relied on that line of authority to reinforce the point that privilege cannot always be reduced to a narrow exchange between one lawyer and one client representative. The reality of corporate decision-making is more complex than that, and the Court’s approach reflects that reality.
That said, the decision should not be read as granting blanket protection to every internal corporate communication touching on a legal issue. The judgment does not mean that all internal emails, draft documents or discussion notes become privileged simply because lawyers may later be consulted. Nor does it do away with the difficult question of identifying who falls within the relevant client group in the first place. The safer reading is that, once the client group is properly identified, privilege may extend to internal documents created within that group where they genuinely form part of the process of seeking legal advice. Ordinary commercial discussion, operational correspondence or documents created for broader business reasons will not be protected merely by being described after the event as legally sensitive.
The practical implications are considerable. Corporate clients will welcome a decision that offers stronger protection for internal preparatory material in disclosure-heavy disputes, particularly where legal advice is preceded by an internal information-gathering or issue-identification exercise. At the same time, the decision makes it even more important for organisations to manage internal communications carefully. Companies should identify clearly who is authorised to seek and receive legal advice, avoid unnecessary circulation of legally sensitive material, and keep legal communications distinct from broader business discussion wherever possible. Internal documents created in preparation for legal advice should also be approached with discipline, as the purpose for which the document came into existence remains central to the privilege analysis.
Implications with the Use of AI
The judgment may also prove significant beyond conventional memos and draft instructions. As internal corporate processes increasingly involve collaborative digital tools and AI-assisted drafting, questions will inevitably arise as to whether material produced through those methods falls within the same privileged preparatory sphere.
Aabar does not decide those questions directly, but its emphasis on purpose over form may make it easier to argue that modern methods of preparing for legal advice should be treated in the same way as more traditional client-side working papers. Any such argument, however, will still depend on showing that the material was genuinely created as part of the process of obtaining legal advice otherwise none as meeting the “dominant purpose” rest from the very beginning. If the intent was not there when you typed the prompt, the chat is not protected.
Additionally, not all AI platforms treat your data the same way. A 2026 UK Upper Tribunal case, Munir v Secretary of State for the Home Department, warned that pasting highly sensitive legal material into a public AI tool could be viewed as placing that information into the public domain. If the AI tool uses your conversations to train its models, a court might rule that you have waived your right to confidentiality. Furthermore, Aabar Holdings is a first-instance High Court decision. This means that it is not strictly binding on other High Court judges and could be challenged, departed from, or overturned on appeal by a higher court. Therefore, relying entirely on this new protection remains a calculated risk.
Conclusion
Viewed overall, Aabar v Glencore is an important development in the law of privilege. It does not overrule Three Rivers (No 5), nor does it erase the continuing difficulties surrounding the definition of the client in a corporate context. What it does do is limit the extent to which Three Rivers (No 5) can be treated as a complete bar to privilege claims over internal client-group material. In that respect, the judgment is likely to be welcomed by corporate litigants and in-house teams alike. It offers a more realistic account of how legal advice is prepared for and sought within modern organisations, while still preserving the need for careful analysis of purpose, context and internal circulation.
