knowledge 27 April 2026 |

Beyond the Lawyer-Client Relationship: Exploring a Potential Expansion of Legal Advice Privilege

Background

The case arose in the context of claims being made against the first Defendant under the UK Financial Services and Markets Act 2000. During the discovery process, the Claimants raised concerns that the first Defendant was asserting legal advice privilege in an overly broad manner.

The Claimants asserted that legal advice privilege only applied to (i) communications between a corporation’s lawyers and the employees of that corporation who had been tasked with obtaining legal advice on behalf of the corporation, to (ii) documents which evidence the substance of privileged communications, and to (iii) documents that were intended to be communicated to a lawyer but were not sent.

The first Defendant claimed it was entitled to assert privilege over both communications between the client and lawyer, and communications between members of the ‘client group’. These intra-client documents included preparatory memos and notes made by employees in advance of obtaining legal advice.

UK High Court Findings

• In the Court of Appeal’s decision in Three Rivers (No 5) legal advice privilege was described as applying to communications between lawyer and client (and drafts of such communications) – with “client” interpreted narrowly to include only those within the client organisation who are responsible for seeking or obtaining legal advice on its behalf (and not those who simply have information that the lawyer needed in order to advise).
• The Court found that the Court of Appeal decision in Three Rivers (No 5) was not concerned with the issue that was 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. The court therefore found that it was unfettered by any binding authority to the effect that legal advice privilege cannot operate in relation to intra-client documents.
• The Court held that in principle, no distinction can be made between internal documents or communications identifying the issue on which advice will be sought, and documents such as engagement or instruction letters seeking that legal advice. As such documents are “materially similar”, it would be illogical to make such a distinction.
• The Court found that legal advice privilege will apply to intra-client documents which are sent between or created by members of the client group provided those documents were created with the dominant purpose of seeking legal advice. As Picken J explained “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.”
• The Court dismissed the claim.

The decision marks a broader interpretation of legal advice privilege that has previously been recognised. However, as a first instance ruling it will not be binding on other courts.  Further, it is arguably at odds with statements in appellate decisions which characterise legal advice privilege as confined to lawyer/client communications – particularly the decision in Three Rivers.  It is also unclear whether the Irish Courts, if tasked with a similar question, would follow suit and similarly find that legal advice privilege applies to intra-client communications. 

Considering the above, it would therefore be prudent for clients to take a cautious approach to creating intra-client documents and proceed on the assumption that only their communications with a lawyer, and not "intra-client" communications, will be protected by privilege.