On 16 April 2026, the High Court handed down its latest decision in the FSMA claims against Glencore, Aabar Holdings S.A.R.L. & Others v Glencore Plc & Others [2026] EWHC 877 (Comm), which clarifies the extent to which legal advice privilege applies to internal communications within a client group. The Court confirmed that documents generated by, or exchanged between, members of a client group for the dominant purpose of seeking legal advice are privileged.

Background

The issue between the parties was the extent to which legal advice privilege, which generally protects client-lawyer communications made for the dominant purpose of seeking or giving legal advice, applies to 'Intra-Client Documents'. These were defined as:

• Internal communications between members of the client group; and/or
• Documents created by members of the client group.

The concept of a 'client group' originates from the Court of Appeal's decision in Three Rivers (No 5).¹ In that case, the Court found that only communications between the 'client group', being a defined group of employees authorised to seek and receive legal advice on behalf of the organisation, and the organisation's lawyers, are privileged. Communications between lawyers and employees outside of the client group do not attract privilege.

In Glencore, the Claimants' position was that legal advice privilege should only attach to Intra-Client Documents if they disclose the substance of a communication between the client group and a lawyer made for the dominant purpose of seeking legal advice, or if they were intended to be communicated to a lawyer but ultimately were not (i.e., inchoate communications). The Claimants relied heavily on Three Rivers (No 5) to support their argument that legal advice privilege should be confined narrowly.

Glencore argued that legal advice privilege should apply to any Intra-Client Documents sent between, or created by, members of the client group, provided they were made for the dominant purpose of seeking legal advice. It maintained that this question had not been determined by Three Rivers (No 5), which was instead concerned with non-client group material, as opposed to Intra-Client Documents. In any event, Glencore argued that legal advice privilege should attach to these documents in principle because they are the mirror image of lawyers' working papers, which are undoubtedly subject to legal advice privilege.

Decision

The High Court agreed with Glencore's position, recognising that legal advice privilege "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."

In reaching his decision, Mr Justice Picken drew a clear distinction between Three Rivers (No 5), as a case concerned with the extent to which legal advice privilege protects communications outside of the client group, and the present case, which concerns whether legal advice privilege protects internal communications within the client group.

Furthermore, Picken J found that the Intra-Client Documents must be privileged as a matter of principle and there was no justification for the restrictive approach to legal advice privilege advanced by the Claimants. He also found support for this proposition from the Court of Appeal's decision in Jet2.com.²

The judgment clarifies that the following types of communications, when circulated within a 'client group', for the dominant purpose of seeking legal advice, are privileged:

• Documents or communications by a member of the client group identifying an issue on which legal advice will be sought, even if advice has not yet been sought from a lawyer. For example, a draft letter to counsel; and
• Documents or communications prepared to identify facts to share with a lawyer, where the document itself is not intended to be sent to the lawyer. For example, preparatory notes for a meeting with counsel. Alternatively, correspondence from a member of the client group sharing thoughts or information in advance of a meeting between the client group and a lawyer that they will not personally be attending.

Comment

This judgment provides further clarity on the scope of legal advice privilege. It confirms that purely internal client group communications and documents, even where no lawyers are involved, may be privileged. This includes communications or documents collating information or identifying issues upon which legal advice may be sought, provided always that they are created for the dominant purpose of seeking legal advice.

This is the second judgment regarding the scope of privilege in the ongoing s.90 and/or s.90A FSMA claim against Glencore. In an earlier judgment, the High Court denied the shareholders' rights to inspect the company's privileged documents in litigation proceedings (see blogpost here). That conclusion was subsequently upheld by the Privy Council (see blogpost here). The case now proceeds to trial, listed for October 2026.

Clifford Chance represents Glencore and is representing defendants in previous and ongoing s.90 and s.90A FSMA cases.

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¹Three Rivers District Council v Bank of England (No. 5) [2003] QB 1556.

²Civil Aviation Authority v R Jet2.com Ltd [2020] EWCA Civ 35