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

In an earlier judgment in these proceedings, I concluded that the so-called Shareholder Rule should be regarded as no longer existing ([2024] EWHC 3046 (Comm)), a conclusion with which the Privy Council subsequently agreed in Jardine Strategic Limited v Oasis Investments II Master Fund Ltd and 80 othersNo 2 [2025] UKPC 34.

This judgment now addresses a further important privilege-related issue, as between the Claimants and the First Defendant (‘Glencore’) (but not the other Defendants), concerning the scope of legal advice privilege and, in particular, the extent to which that privilege applies to internal communications between members of the client group and/or documents created by a member of the client group.

I need not, in the circumstances, repeat the background which I set out in my earlier judgment at [2] to [9]. I can, instead, turn immediately to the issue.

The various sets of Claimants are separately represented. For present purposes, however, it was Mr Kramer KC who advanced submissions, in effect, on behalf of all the Claimants.

By way of context for the submissions that he came on to advance, Mr Kramer described the Claimants as having to have raised concerns in correspondence about Glencore’s approach to asserting legal professional privilege and the application of privilege redactions. Specifically, he highlighted how, on 17 November 2025, when giving its final tranche of Extended Disclosure, Glencore (through Clifford Chance LLP) informed the Claimants for the first time that it had been approaching its disclosure obligations in all the tranches since April 2025 on the basis that the Court of Appeal decision in Three Rivers (No 5) [2003] QB 1556 was wrongly decided inasmuch as that decision is understood as standing for the proposition that “legal advice privilege attaches only to communications passing between a corporation’s lawyers and employee(s) of the corporation who have been tasked with seeking and receiving such advice on behalf of the client”, and that Glencore had been treating legal advice privilege as applying more widely to “all communications made for the dominant purpose of seeking or receiving legal advice”.

The Claimants (through Quinn Emanuel Urquhart & Sullivan UK LLP) responded on 27 November 2025, pointing out that Glencore’s approach to legal advice privilege was inconsistent with Three Rivers (No 5) both, first, in treating every employee as “the client” and, secondly, in not confining the privilege to communications between client and lawyer (or those that disclosed legal advice).

Glencore’s response to this, on 19 December 2025, was to maintain its position but to state that it would reconsider the relevant documents and issue an application with respect to those it decided to continue to withhold.

Glencore then wrote again on 12 January 2026 to inform the Claimants that it would no longer assert privilege on the basis that Three Rivers (No 5) was wrongly decided, before, shortly afterwards on 16 January 2026, producing 885 documents that had been previously withheld and re-producing 290 documents.

It subsequently, however, became clear that, in doing this, whilst Glencore has not maintained its contention that every employee should be treated as “the client”, nonetheless Glencore continues to maintain that it is entitled to assert privilege over communications which are not between client and lawyer but are between members of the “client group” (as defined in Three Rivers (No 5)).

Mr Kramer’s submission was that Glencore should not be permitted to take this stance and that, on the contrary, Glencore should be ordered to produce all documents that it has withheld on the basis of legal advice privilege which are communications between members of the “client group” (rather than between the “client group” and lawyers), other than those which evidence the substance of privileged communications or are “inchoate communications” (as described by Longmore LJ in Three Rivers (No 5), namely any “document which was intended to be a communication between client and solicitor … even if not in fact communicated”).

Mr Kramer emphasised in this context that it is, as he put it, a basic tenet of legal advice privilege that it applies to communications between lawyer and client, highlighting that, in Three Rivers (No 5), after reviewing the 19th century authorities on legal advice privilege, Longmore LJ concluded at [21] that those authorities:

Mr Kramer stressed, in particular, the words “other than those passing between the client and his legal advisers and evidence of the contents of such communications”, before noting that Longmore LJ went on to observe that subsequent 20th century authorities did not alter the position, thereby rejecting the Bank of England’s submission (recorded at [6]) that“any document prepared with the dominant purpose of obtaining the solicitor’s advice upon it came within the ambit of the privilege”.

Mr Kramer further submitted that his position is supported by how Lord Carswell characterised the decision inThree Rivers (No 5) when the case came before the House of Lords (on a different point) inThree Rivers (No 6) [2005] 1 AC 610 since he said this concerning the Court of Appeal’s decision in Three Rivers (No 5) at [72]:

Mr Kramer also drew attention to the fact that in Three Rivers (No 6)Lord Scott noted at [10] that “Legal advice privilege covers communications between lawyers and their clients where legal advice is sought or given”; and Lord Rodger noted at [50] that legal advice privilege “attaches to all communications made in confidence between solicitors and their clients for the purpose of giving or obtaining legal advice even at a stage when litigation is not in contemplation”.

That legal advice privilege is limited to communications between lawyer and client has also been confirmed, Mr Kramer noted, by the Court of Appeal in SFO v ENRC [2019] 1 WLR 791 at [61]-[66] and [79]-[81], and in R (Jet2.com Ltd) v CAA [2020] QB 1027 at [37], [42], [58] and [61]; and by the High Court in cases which include National Westminster Bank Plc v Rabobank Nederland [2006] EWHC 2332 per Simon J (as he then was) at [18]-[32]; and In re RBS Rights Litigation [2017] 1 WLR 1991 per Hildyard J at [64]. Moreover, Mr Kramer submitted, each of the leading textbooks on legal professional privilege supports the Claimants’ position: see, by way of example, Thanki, The Law of Privilege 4th Ed. at §§2.03, 2.16-2.17, 2.33-2.46, 2.63; and Passmore, Privilege 5th Ed. at §§2-003, 2-015, 2-024.

For reasons that I will now explain, but which largely reflect the submissions put forward by Mr Singla KC, on behalf of Glencore, I do not agree with Mr Kramer (and so with the Claimants) that, as a matter of law, Glencore should be required to produce communications between members of a relevant “client group” and where no lawyer is a party to the communication, unless the document discloses the substance of a communication between members of the “client group” and a lawyer made for the dominant purpose of giving or receiving legal advice or the document was intended to be a communication to a lawyer but was not sent. I have concluded, on the contrary, that the true position, on the authorities, is 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. Nor, as I will come on to explain after first considering the authorities, does it seem to me that the position adopted by the Claimants can be right as a matter of principle.

It is convenient, given the reliance placed on it, to start with Three Rivers (No 5) itself. The appeal in that case arose in the context of a claim brought by the liquidators and creditors of BCCI against the Bank of England, the issue being whether the Bank was entitled to assert legal advice privilege in respect of documents relating to a prior inquiry into the Bank’s supervision of BCCI.

It is important to note in this respect that the issue before the Court of Appeal concerned, specifically, communications between three officials appointed by the Bank and known as the Bingham Inquiry Unit (or ‘BIU’) and the inquiry, and not communications involving other employees of the Bank, including even its Governor. In short, it was the BIU which was treated as the client for legal advice privilege purposes. That this is the case is apparent from what Longmore LJ had to say at [31], namely:

It is apparent also from earlier parts of Longmore LJ’s judgment. Thus, at [4], he said this:

Later, at [15], after referring to certain dicta in Southwark and Vauxhall Water Company v Quick (1878) 3 QBD 315, Longmore LJ made this observation:

Longmore LJ plainly had in mind the same distinction at [18] when referring to Wheeler v Le Marchant (1881) 17 ChD 675, specifically a passage in the judgment of Cotton LJ at pages 684-685, since he stated as follows:

I am clear, in the circumstances, that Mr Singla was right when he submitted thatThree Rivers (No 5)should be treated, for relevant present purposes, as concerned only with ‘non-client’ documents, and not with ‘client’ documents (including, therefore, ‘intra-client’ documents). That is why Longmore LJ referred at [31] to the Bank not being “entitled to privilege in any of the four categories itemised at the beginning of this judgment”, which includes category (1) identified at [4] comprising “documents prepared by Bank employees, which were intended to be sent to and were in fact sent to Freshfields” and so documents prepared by non-BIU Bank employees. It is also why Longmore LJ earlier pointed out, at [4], that there was no challenge to privilege in respect of “documents passing between the BIU and Freshfields”.

On that basis, as Longmore LJ explained at [32], it was unnecessary for the Court of Appeal “to express a view on the question whether the internal documentation of the Bank, which came into existence after the setting up of the Bingham inquiry, was indeed prepared with the dominant purpose of obtaining advice”. In fact, however, the Court of Appeal’s conclusion, as expressed by Longmore LJ, was that, whilst it “would, no doubt, be right to say that the obtaining and giving of advice was an important purpose”, nonetheless “we would not say on the facts of the present case that it was the dominant purpose” since:

It is right to acknowledge that, as Mr Kramer pointed out, the evidence (in the form of evidence from the Bank’s solicitor, Mr Croall) which was before Tomlinson J, at first instance in Three Rivers (No 5), suggests that some of the documents with which Three Rivers (No 5) was concerned were intra-client documents in the sense that they were internal to the BIU; indeed, it appears that the order that Tomlinson J made (as upheld by the Court of Appeal) includes this category of documents. However, there was no argument either before Tomlinson J or the Court of Appeal addressing intra-client documents, indicating that none of the parties had such documents as their focus. This, no doubt, explains why neither Tomlinson J nor the Court of Appeal addressed the issue of intra-client documents. Their reasoning was silent on the point that is now before the Court. In the circumstances and put simply, it would be wrong now to take it that Three Rivers (No 5) is authority in respect of intra-client documents merely because the order made by Tomlinson J (and upheld by the Court of Appeal) included such documents and notwithstanding that nowhere in either Tomlinson J or Longmore LJ’s judgments was that category of documentation specifically addressed.

I conclude, in the circumstances, that Three Rivers (No 5) was not concerned with the issue that is now before the Court, namely the extent to which legal advice privilege applies to internal communications between members of the client group and/or documents created by a member of the client group – as opposed to communications outside the client group (between members of the client group and non-members of the client group and/or documents created by non-members of the client group).

Nor, I am clear, do any of the earlier authorities, reviewed by Longmore LJ in Three Rivers (No 5), address the present issue.

Greenough v Gaskell (1833) 1 My & K 98 (addressed by Longmore LJ in Three Rivers (No 5) at [8]) considered whether the defendant solicitor, sued for fraudulently concealing that his client was insolvent and thereby inducing the plaintiff to issue a promissory note on the client’s behalf, could claim privilege in respect of communications which he had received from his client. Lord Brougham LC held that the defendant could claim privilege, that it made no difference whether it was the client or the solicitor who was the defendant and that it did not matter that, at the time, there were no existing or contemplated proceedings. In doing so, he observed at pages 101-103 that:

Nor, as it seems to me, would it be right to view the reference to lawyer/client communications (or, as Longmore LJ put it, “communications between the client and solicitor”) in Greenough v Gaskell as foreclosing the applicability of legal advice privilege to cases where the documents under consideration are not lawyer/client documents. This is because, as Longmore LJ went on to note at [8], Greenough v Gaskell was decided at a stage (an “early stage”) where “in the law there was no distinction drawn between litigation privilege and legal advice privilege”, Lord Brougham LC thinking that “there was a singe lawyer/client privilege which applied even if proceedings were not contemplated”. Greenough v Gaskell was, accordingly, concerned with a new development, the House of Lords deciding that privilege should attach to lawyer/client communications outside the context of litigation in the same way as it would in the litigation context. It was that extension of the privilege (from litigation privilege to legal advice privilege, even if these were not the terms then used) that explains Lord Brougham LC’s emphasis on lawyer/client communications; it does not mean that legal advice privilege, as it has come to be known and as it has evolved, should be regarded in so restrictive a way.

The same applies to Reece v Trye(1846) 9 Beav. 316, to which Longmore LJ went on to refer in Three Rivers (No 5) at [9]. In that case, at pages 318-319, Lord Langdale MR said this:

As forAnderson v Bank of British Columbia (1876) 2 ChD 644, as Longmore LJ explained in Three Rivers (No 5) at [10], this involved somewhat strange (and different) facts, which did not involve communications between a lawyer and a client and nor did it involve intra-client documents like those at issue in the present case. Litigation was threatened against an English bank concerning the conduct of an account kept at the branch of the bank in Oregon. The English bank’s London manager thought it necessary to ascertain the full facts and cabled the branch manager in Oregon (Mr Russell) for full particulars of transactions on the account. Mr Russell replied with the particulars and in the ensuing litigation the bank claimed that the reply was privileged. There being no clear-cut distinction between litigation and legal advice privilege at this time, it was concluded both at first instance and in the Court of Appeal that Mr Russell’s letter was not privileged - mainly because they concluded that the bank’s London manager was taking steps to inform himself of the position rather than to obtain material which would find its way, in due course, into counsel’s brief. As the passages cited by Longmore LJ at [11]-[14] reveal, there was no discussion of the intra-client position; the discussion was, rather, focused on an assortment of agency relationships.

Turning to Southwark and Vauxhall Water Company v Quick, addressed by Longmore LJ in Three Rivers (No 5) at [15]-[16] and another case which did not involve intra-client exchanges, what is important to appreciate here is the submission that was advanced on behalf of the Bank in Three Rivers (No 5) in reliance on what was decided in Southwark and Vauxhall and how that submission was addressed by the Court of Appeal in Three Rivers (No 5), as reflected in this passage in Longmore LJ’s judgment at [15]:

Lastly, as to Wheeler v Le Marchant, which was considered by Longmore LJ in Three Rivers (No 5) at [17]-[18], as he made clear in the passage previously quoted,that was a case in which documents were “obtained from third parties to be shown to a solicitor for advice”. This is, again, underlined by reference to the submission that was advanced on behalf of the Bank, as made clear by what Longmore LJ had to say at [18], after setting out certain passages from the judgments in Wheeler v Le Marchant:

It is, of course, right to acknowledge that Longmore LJ, then, stated as follows at [21]:

My conclusions thatThree Rivers (No 5)is a decision which was not concerned with intra-client documents and communications (in contradistinction to documents and communications from individuals outside the client group) and, furthermore, that nothing in that decision should be taken as restricting the scope of legal advice privilege to instances where the documents under consideration are lawyer/client communications are not undermined by the subsequent authorities to which Mr Kramer took me.Certainly, I have not been referred to any authority where Three Rivers (No 5) has been applied to defeat claims to legal advice privilege in respect of documents specifically identified as intra-client documents that were created for the dominant purpose of seeking legal advice.

As to Three Rivers (No 6), whilst Lord Scott and Lord Rodger noted what they did at [10] and [50] respectively, it should not be overlooked that, in fact, Lord Scott went on at [13] to recognise that the “BIU, and no one else, was to be treated as Freshfields’ client for privilege purposes”, adding at [14] the following:

The fact that Lord Scott regarded Three Rivers (No 5) as not being concerned with the intra-client documents position is confirmed by what he said at [20]:

Lord Scott returned to this issue later, saying the following at [46]-[48]:

I would add that I do not agree with Mr Kramer when he submitted that Lord Scott’s references to lawyer/client communications should be regarded as his recognising that legal advice privilege is restricted to documents of that nature, and so that legal advice privilege does not also cover documents that are not communications between lawyers and clients. Lord Scott was not addressing the present issue and, in expressing himself as he did, he was merely describing, as Mr Singla put it, the quintessential category of documents to which legal advice privilege attaches; he was not setting out an exhaustive statement of the legal advice privilege principle.

Lord Rodger agreed with Lord Scott, at [49], that the point addressed by Lord Scott (the point addressed in Three Rivers (No 5)) should not be dealt with, as did Baroness Hale, who said this at [63]:

I come on to consider other subsequent authorities relied upon by Mr Kramer, starting with the apparently ex tempore decision in National Westminster Bank Plc v Rabobank Nederland. In that case, Simon J accepted a submission advanced on behalf of the claimant bank that, in view of Three Rivers (No 5), legal advice privilege did not apply to documents amounting to preparatory work which did not constitute communications between lawyer and client. He noted, in particular, at [24], that in Three Rivers (No 5) the Court of Appeal were concerned with “documents which were passed to the BIU” and, at [26], that it had been decided that legal advice privilege “could only be claimed for documents passing between the client and the legal advisers, and that Legal Advice privilege did not attach to ‘preparatory’ materials even if created for the purpose of enabling lawyers to advise, unless there was such communications”. There is no indication that the relevant documents were intra-client documents. On the contrary, the inference is that they were not, given that there was no mention of any intra-client issue. An alternative, and equally plausible, inference is simply that neither party raised the present issue before Simon J. On either view, it seems to me that National Westminster Bank Plc v Rabobank Nederland is of somewhat limited assistance in the present context.

As for SFO v ENRC, it is significant that, at [79] and [80], Sir Geoffery Vos C quoted from Longmore LJ’s judgment in Three Rivers (No 5) at [21] and [31], and then said the following at [81]:

What these passages indicate to me is that the Court of Appeal in SFO v ENRC recognised that the ratio decidendi of Three Rivers (No 5) is as Mr Singla characterised it and not the broader characterisation urged upon the Court by Mr Kramer: in short, what was decided in Three Rivers (No 5) is confined to the position concerning non-client documents, and nothing that was said in that case bears upon intra-client documents.

As for In re RBS Rights Litigation, Mr Kramer highlighted passages in the judgment of Hildyard J at [60]-[64], in which he described Three Rivers (No 5) as confining legal advice privilege “to communications between lawyer and client”, whilst recognising that Three Rivers (No 5) had “attracted disquiet and not a little academic criticism”. However, In re RBS Rights Litigation was not an intra-client documents case. The issue, rather, was as described by Hildyard J, at [80], by reference to the case being advanced by RBS, namely:

Hildyard J went on to answer these questions by reference to Three Rivers (No 5) in this way, at [91]-[93]:

It is clear from [92] and [93] that In re RBS Rights Litigation was not concerned with intra-client documents: the individuals who were interviewed provided the information that they did as employees, not as clients. It follows that the case ought not to be regarded as a case which treats Three Rivers (No 5) as dealing with legal advice privilege insofar as intra-client documents are concerned. This is, furthermore, confirmed by what Hildyard J had to say earlier at [45]-[46]:

I conclude, having considered authorities both before and after Three Rivers (No 5), that there is no authority which prevents the assertion of a claim to legal advice privilege where intra-client documents are concerned.

The same applies to the academic commentary relied upon by Mr Kramer.

Passmore addresses Three Rivers (No 5) in a section starting at §2-046, under the heading “Identifying the client: Three Rivers (No 5)”, as follows:

Passmore goes on at §2-47 to say this:

As for Thanki, under the heading “Who is the Client?”, Three Rivers (No 5) is addressed in a section starting at §2.08, with this being stated at §§2.16 and 2.17:

I set these passages out in some detail for a simple reason: what they focus upon is what I have previously identified as the ratio decidendi in Three Rivers (No 5), namely that legal advice privilege cannot arise where non-client documents are concerned, and so in that case in relation to exchanges involving Bank employees who were not members of the BIU. Passmore and Thanki’s disapproval of Three Rivers (No 5) is as to that, and their recognition that Three Rivers (No 5) represents binding authority unless and until there is a Supreme Court decision that overrules it is limited to this issue, rather than the question which arises in the present case, namely the position in relation to intra-client documents. The position would be different if the documents now under consideration were documents that involved third parties (including employees who do not come within the ambit of the client group). That, however, to repeat, is not the position since Glencore’s only focus, at least at this stage of the proceedings, is as to intra-client documents, not communications or exchanges outside of the client group.

Accordingly, unfettered by any binding authority to the effect that legal advice privilege cannot operate in relation to intra-client documents, I come on to consider the position as a matter of principle.

I consider the position here to be clear; indeed, it is to be noted that, in his submissions, Mr Kramer had little to say concerning the matter of principle, his almost exclusive focus instead being his contention - a contention which I have rejected - that Three Rivers (No 5) should be regarded as binding authority in relation to intra-client documents.

As Mr Singla observed, although it is often said (not least by Mr Kramer in his submissions), at least in general terms, that legal advice privilege attaches only to communications between a lawyer and client, it is recognised in both the authorities (as has already been seen) and in the academic commentary that, as Thanki puts it in §2.03 (echoed at §2.31), “an actual communication passing between lawyer and client is not in fact required in all circumstances” or, as Passmore puts it in §2.06, legal advice privilege “extends to other types of confidential communications that do not pass directly between client and lawyer but nonetheless are made as part of the process of seeking or giving legal advice or assistance”. Mr Kramer, indeed, himself expressly acknowledges this to be the case since he accepts, in terms, that legal advice privilege applies to an intra-client document that discloses the substance of a communication between members of the client group and a lawyer made for the dominant purpose of giving or receiving legal advice and also to an intra-client document that was intended to be communicated to a lawyer but was not sent.

Given this, I agree with Mr Singla when he submitted that it would make no sense for legal advice privilege not to be available in respect of intra-client documents whose dominant purpose is to identify an issue on which the client proposes to seek advice from a lawyer but at a time at which advice has not yet been sought from the lawyer in relation to the issue identified. There can be no distinction in principle between, on the one hand, an engagement or instruction letter that identifies the issue on which legal advice will be sought and, on the other hand, another document or communication created by the client which identifies the issue on which legal advice will be sought. On the Claimants’ case, however, whereas the former can be the subject of legal advice privilege on the basis that it discloses the issue on which legal advice will be sought, legal advice privilege is not available in respect of the latter, even though a document or communication created by the client which identifies the issue on which legal advice will be sought will disclose the issue on which legal advice will be sought just as much as will an engagement or instruction letter that identifies the issue on which legal advice will be sought. There is, in practical terms, no difference between the two types of document, and it is illogical, therefore, to permit legal advice privilege to apply in the one case but not also the other.

The more so, since I agree also with Mr Singla when he observed that an intra-client document in the second category will inevitably evidence the substance of any later privileged communication between client and lawyer in which the client seeks advice from the lawyer in relation to the relevant matter. As Thanki puts it at §2.42 (under the heading “Secondary evidence principle in respect of anterior documents”):

Nor would it make sense for legal advice privilege not to apply to intra-client documents whose dominant purpose is to identify facts that the client proposes to communicate to a lawyer for the purpose of seeking legal advice, but where the document itself is not intended to be sent to the lawyer. An example might be a client, the day before he or she is due to meet his lawyer for the first time, writing himself or herself a memorandum with notes for the meeting. Another example might be one member of the client group, who will not be attending the meeting with the lawyer, emailing another member of the client group with information or thoughts in preparation for the meeting. I agree with Mr Singla when he submitted by reference to these types of documents that there can be no distinction in principle between an intra-client document which is itself intended to be communicated to a lawyer and an intra-client document which contains information that is intended to be communicated to a lawyer but the document itself is not intended to be sent. However, again, if Mr Kramer’s submissions were to be accepted, then, whereas documents in the first category would attract legal advice privilege, documents in the second category would not. There would be no logic to such a position.

Thanki addresses a similar point at §2.46:

Again, I agree with this. It seems obvious to me that a document of this nature would inevitably evidence the substance of any subsequent communication between client and lawyer in which the client communicates facts to the lawyer as part of communications intended to enable the lawyer to provide advice. That is the point made by Thanki at §2.42 in the passage previously quoted, which was followed by §2.43:

As Mr Singla observed, if (as is obviously the case and is not in dispute) a lawyer’s working papers are the subject of legal advice privilege, it is difficult to see why what are, in effect, a client’s working papers should not also attract such privilege. They are the mirror image of each other and, as such, should be treated in the same way for legal advice privilege purposes.

Accordingly, my conclusion is that, as a matter of principle, it cannot be correct that the application of legal advice privilege to intra-client documents is as circumscribed as the Claimants maintain. I am clear, on the contrary, that there can be no justification for treating intra-client documents, created as part of the process of seeking legal advice or assistance and/or for which the intention to communicate with the lawyer accounts for the existence of the document, as not attracting legal advice privilege in circumstances where that privilege is available in relation to other documents that are materially similar. There is no justification for such a restrictive approach and, in truth, Mr Kramer was unable to explain why there should, as a matter of principle, be the differentiation for which he contended. His almost exclusive focus, rather, was as to Three Rivers (No 5) and his submission that that decision precludes the assertion of legal advice privilege in respect of intra-client documents, yet I have previously explained why I do not consider that to be the case on a proper reading of the Court of Appeal judgment in Three Rivers (No 5).

Support for the conclusion that I have reached is, moreover, to be found in the decision of the Court of Appeal in Jet2.com.

As is apparent from the first instance decision of Morris J at [90] ([2018] EWHC 3364 (Admin)), Jet2.com concerned claims to privilege over drafts of a letter from the defendant that had been shared via multi-addressee emails to personnel including in-house lawyers, and multi-addressee emails in which those drafts were discussed. At [95], Morris J summarised the principles which he considered to be established by the authorities, holding that each draft of the letter would only be privileged if it had been drafted for the dominant purpose of seeking legal advice on it (see [95(3)] and [99]-[100]) and that each multi-addressee email would only be privileged if the dominant purpose of each email to each addressee was to seek legal advice (or if the email might disclose the nature and content of the legal advice sought and obtained) (see [95(5)] and [101]-[102]). He went on to conclude that the dominant purpose of the first draft of the letter (which had been disclosed) was not to seek legal advice (see [102]) and expressed doubt as to whether subsequent drafts and/or discussion of those drafts would be privileged (see [103]).

The defendant’s appeal was dismissed.Under Ground 1 (“legal advice privilege and purpose”), Hickinbottom LJ confirmed, at [96], that “for LAP to apply to a particular communication or document, the proponent of the privilege must show that the dominant purpose of that communication or document was to obtain or give legal advice”.Under Ground 2 (“legal advice privilege and multi-addressee communications”), as explained more fully later, he addressed this at [100], rejecting the challenge which was made to the approach adopted by Morris J.

In arriving at these conclusions, Hickinbottom LJ identified a number of propositions. These included what he described as “Proposition 2”, which he addressed at [45] in this way:

Importantly, Hickinbottom LJ, then, dealt with a fourth proposition, as follows at [47]:

I agree with Mr Singla’s submission that the reference to “documents or other materials between an employee … and a co-employee” is obviously to be taken to mean a situation where the employee and co-employee are each within the client group, and that the reference to “the employee [being] tasked with seeking and receiving such advice on behalf of the company” ought, likewise, to be treated a reference to a situation where the exchanges are intra-client, and not involving any third party (including any non-client employee in a scenario such that in Three Rivers (No 5) involving the BIU). In other words, Hickinbottom LJ was referring to intra-client documents and acknowledging that in relation to these legal advice privilege can arise provided that the dominant purpose test is met.

Mr Kramer submitted that this is not the case, noting that, in any event, Jet2.com was not concerned with communications that do not involve lawyers and so what Hickinbottom LJ had to say at [47] was obiter. I will address the latter point in a moment, however, as to the first, I reject Mr Kramer’s submission that the passage relied upon by Glencore was “merely infelicitous drafting” since the intention of the sentence appears to have been only to reaffirm the uncontroversial statement that there is an exception to the lack of legal advice privilege for communications between employees and co-employees or lawyers where communications are between an employee tasked with seeking legal advice and the corporation’s lawyers, which attract legal advice privilege. That is not how I read what Hickinbottom LJ had to say.

This, indeed, appears to have been the view taken also by O’Farrell J in Northumbria Healthcare NHS Foundation Trust v Lendlease Construction (Europe) Limited[2022] EWHC 1266 (TCC) at [85]-[86]:

Nor is Glencore’s point undermined by the fact that it is clear from the remainder of Hickinbottom LJ’s judgment that he intended to follow, and apply, the reasoning and decision in Three Rivers (No 5), including the principle that legal advice privilege applies to communications between client and lawyer, since, as previously explained, whilst Three Rivers (No 5) was not concerned with intra-client documents, nonetheless there is no issue as to the applicability of the dominant purpose test discussed in Three Rivers (No 5). In particular, having referred to what Sir Geoffery Vos C had had to say in SFO v ENRC at [81] and [127], Hickinbottom LJ said the following at [56] to [58]:

This brings me to Mr Kramer’s submission that what Hickinbottom LJ had to say at [47] was obiter. I do not agree with him about this. On the contrary, it can be seen that the first category of documents in issue in Jet2.com comprised drafts of a letter from the defendant, including versions drafted by members of the client group rather than lawyers (as well as other versions that were drafted by lawyers). These are intra-client documents, in respect of which the Court of Appeal dismissed the appeal, so confirming the correctness of the approach that Morris J had taken at first instance, namely that a draft is privileged if and insofar as it has been drafted for the dominant purpose of seeking legal advice. Similarly, as to the second category of documents in issue, these comprised multi-addressee emails involving both lawyers and non-lawyer members of the client group. As to these, Hickinbottom LJ had the following to say at [100]:

I do not, in the circumstances, regard what Hickinbottom LJ had to say in these passages as being obiter.

It is clear from what Hickinbottom LJ stated at (v) that he was considering not only the situation where an email was sent to “the lawyer alone” but also “whether any of the e-mails to the non-lawyers are privileged”, by reference, for example, to whether their “dominant purpose is to obtain instructions or disseminate legal advice”. It is clear also from what he went on to say at (vi) concerning “the real (dominant) purpose of a specific e-mail to/from non-lawyers” being “that of instructing the lawyer”. Here, Hickinbottom LJ was, accordingly and in short, squarely addressing emails that do not involve lawyers and acknowledging, in doing so, that legal advice privilege is available in such cases – and so in the intra-client situation. This is, of course, consistent with what he had to say at [47], at least on what I regard as the proper reading of that paragraph, and illustrates why Mr Kramer cannot be right when he submitted that Hickinbottom LJ had engaged in “merely infelicitous drafting” when he used the language that he did at [47]. On the contrary, he clearly had in mind intra-client communications both at [47] and at [100].

I would make a final observation in relation to Jet2.com. This is that, whilst I note that Hickinbottom LJ referred on several occasions to legal advice privilege applying to lawyer/client communications, I agree with Mr Singla when he made the point that these references principally comprise citations of, or references to, dicta in Three Rivers (No 5) in circumstances where it was nonetheless recognised in Jet2.com that the Court of Appeal in Three Rivers (No 5) were dealing with non-client or third party communications, as opposed to communications between lawyers and clients or, indeed, communications between clients.

It follows, for reasons that I have sought to explain, that Glencore is entitled to assert legal advice privilege in respect of intra-client documents provided that those documents were created with the dominant purpose of seeking legal advice, and that the position is not as the Claimants have maintained, namely that legal advice privilege only applies to intra-client documents insofar as the documents disclose the substance of a communication between members of the client group and a lawyer made for the dominant purpose of giving or receiving legal advice or the document was intended to be a communication to a lawyer but was not sent.

I end, in an echo of what I had to say at the conclusion of my earlier judgment, by expressing my gratitude to all counsel and solicitors, whose preparation and presentation have again been of the highest quality.