Aabar Holdings S.À.R.L. & Ors v Glencore PLC & Ors

Legal advice privilege is not confined to documents passing directly between lawyer and client. It may extend to intra-client communications and documents created by members of the client group where the dominant purpose was seeking legal advice.

The principle applies even where the document was not sent to a lawyer, provided its creation formed part of the process of obtaining advice or the intention to communicate with a lawyer accounts for its existence. Three Rivers (No 5) is authority concerning non-client or third-party documents, not intra-client material. Documents created by employees outside the relevant client group remain subject to the limitations identified in that decision.

The claimants sought disclosure from Glencore of documents withheld under legal advice privilege. The dispute concerned communications between members of Glencore’s client group which did not involve a lawyer, and documents created by a client-group member for the purpose of obtaining legal advice.

The claimants relied principally on Three Rivers (No 5), arguing that privilege was confined to lawyer-client communications, subject only to documents evidencing such communications or intended communications that were not sent. Glencore contended that privilege extended to intra-client documents created for the dominant purpose of seeking legal advice. The issue was whether the Court of Appeal’s decision governed that question.

The application concerned the scope of legal advice privilege in relation to intra-client documents. The court rejected the claimants’ restrictive construction.

1. Scope of Three Rivers (No 5). That decision concerned documents prepared by Bank employees outside the client group and communications involving non-client employees or third parties. Its reasoning did not determine the position of intra-client documents. The earlier authorities reviewed in that case likewise did not address the intra-client issue.
2. Subsequent authorities. Three Rivers (No 6) expressly treated the employee/client issue as not arising for decision. National Westminster Bank Plc v Rabobank Nederland and In re RBS Rights Litigation concerned non-client or employee information-gathering material and provided limited assistance on the issue. The discussion in SFO v ENRC was consistent with the narrower reading of Three Rivers (No 5).
3. Principle. It would be illogical to protect an instruction letter or draft communication identifying the issue on which advice would be sought while denying protection to an internal document performing the same function. The same reasoning applies to internal documents identifying facts intended to be communicated to a lawyer, even where the document itself is not sent. A client’s working papers may be the mirror image of a lawyer’s working papers.
4. Jet2.com. The Court of Appeal’s reasoning recognised that intra-client communications can attract privilege where the dominant purpose is seeking legal advice. Its treatment of drafts and multi-addressee communications was not merely obiter in the relevant respects. The dominant purpose must be assessed document by document, including whether the communication settles instructions or instead seeks commercial input.
5. Glencore was therefore entitled to assert legal advice privilege over intra-client documents created with the dominant purpose of seeking legal advice. The claimants’ application for disclosure was rejected.