Internal company messages ‘can be protected by legal advice privilege’

A company’s internal messages can be covered by legal advice privilege, even if no lawyer is involved, the High Court has found in a decision addressing a long-running uncertainty in English law.

Mark Aspin Director and Head of Dispute Resolution reports on this recent case.

The ruling came in Aabar Holdings S.À.R.L. v Glencore plc & Ors, where the court was asked to decide whether privilege applies only to communications between lawyers and their client, or whether it can also extend to documents created and shared within a company.

The claimants argued that privilege should be limited to exchanges between lawyers and a defined group of employees authorised to seek legal advice. They relied on earlier case law, particularly Three Rivers (No 5), which has often been taken as restricting privilege in corporate settings.

Mr Justice Picken disagreed. He held that legal advice privilege is not limited to direct lawyer-client communications. It can also cover internal company documents and messages, provided they are created for the dominant purpose of obtaining legal advice.

The judge said earlier cases did not deal with this specific issue and should not be read as excluding protection for internal communications within a company.

In practical terms, the decision means that internal materials — such as emails between team members, notes preparing for discussions with lawyers, or documents setting out issues to take advice on — may be protected by privilege, even if they are never sent to a lawyer.

The court also emphasised that it would make little sense to protect formal instructions to lawyers while leaving unprotected the internal work that leads to those instructions.

Although the ruling is from the High Court and does not settle the law definitively, it provides useful guidance for businesses on how legal advice privilege may apply to internal communications.

If you would like more information about the issues raised in this article or any aspect of litigation and protecting your business, please contact Mark on 01228 516666 or click here to send him an email.