High Court clarifies that legal advice privilege can extend to internal client communications

Background

In Aabar Holdings SARL v Glencore plc, the High Court considered the scope of legal advice privilege in the context of disclosure in complex commercial litigation. Legal advice privilege protects confidential communications between a lawyer and their client from being disclosable during legal proceedings provided that the communications were created for the dominant purpose of seeking and receiving legal advice.

The dispute arose from the defendant’s approach to asserting privilege over documents. The claimants argued that privilege should be limited strictly to communications between lawyer and client, including a defined group of individuals authorised to seek and receive legal advice. On that basis, they contended that internal communications between employees would not generally be protected unless they directly involved lawyers or revealed the substance of legal advice.

The defendant argued for a broader approach, maintaining that privilege could extend to internal communications created for the dominant purpose of seeking legal advice, even if no lawyer was directly involved at that stage.

High Court decision

The High Court rejected the narrow interpretation advanced by the claimants and confirmed that legal advice privilege can extend to certain internal client communications, providing it is done for the dominant purpose of seeking legal advice.

The Court found that there is no rule restricting privilege solely to direct communications between lawyers and their clients. Instead, privilege can apply more widely to documents created as part of the process of obtaining legal advice, provided that their dominant purpose is to seek or facilitate that advice.

The Court emphasised the practical realities of how organisations operate. In many cases, particularly within large organisations, information is gathered, analysed and shared internally before any formal instruction is given to lawyers. The Court considered that it would be artificial to deny privilege to those internal communications where they are clearly part of the same process.

The judgment highlights that internal documents may be protected where they identify issues on which legal advice will be sought, collate relevant facts, or form part of the preparation for instructing lawyers, such as notes prepared in advance of meeting with their lawyer. The key question is whether the dominant purpose of the document is connected to seeking legal advice, rather than its form or whether it is ultimately sent to a lawyer.

Learning points for employers

This decision provides useful clarification for employers, particularly those managing internal investigations or complex disputes. Internal communications may attract legal advice privilege where they are created for the dominant purpose of seeking legal advice, even if they do not involve lawyers directly. However, employers must remain cautious; not all internal communications will be protected, and privilege will depend on the purpose of the document and the role of those involved. Employers should ensure that processes for obtaining legal advice are clearly defined and that the purpose of key communications is properly documented, particularly where there is a risk of litigation.

For more information or advice, please get in touch with Lucy Cinnamond in our Employment team.