The tide rises: How a recent High Court decision could strengthen legal privilege in investigations
6 min read
Legal professional privilege (LPP) is a uniquely powerful English common law right. It overrides other legal and public interests to protect a client’s confidential communications (including emails, transcripts, reports, notes or any another form of material) from disclosure to any third party. That can include the courts, law enforcement agencies, regulators or private counterparties. While confidentiality can be pierced, LPP cannot (subject to the so-called crime/fraud (or iniquity) exception which prevents any material “brought into existence as part of or in furtherance of” a crime from being protected and where there is an “abuse of the lawyer/client relationship”).1
In the context of internal investigations, LPP can also be immensely valuable. A company which discovers potential wrongdoing will want to conduct a thorough investigation to establish the facts, consider potential liability in consultation with their lawyers with the assurance that nothing will be passed on without its consent.2 This will enable it to decide whether, when and how to report relevant issues externally in the applicable legal context. With the knowledge that LPP applies, the company will be able to discuss important issues with its lawyers and take legal advice before making difficult decisions. In addition, a legally privileged investigation report is an incredibly valuable asset for a company, both as a document to assist accountable decision-making and as an evidential record.
But LPP is rarely straightforward and being able to rely on it is not a given. Opponents in all types of proceedings are likely to challenge claims that LPP applies to material they would like to see. For example, the Serious Fraud Office (SFO) may push back on what it considers to be weak or doubtful claims to LPP and is willing to engage in litigation in certain cases, for example seeking a declaration in the High Court that certain documents are not privileged.
When and how LPP can help in internal investigations
There are two categories of LPP. Litigation privilege applies when adversarial proceedings are in existence or reasonably contemplated – but this is unlikely to be the case in internal investigations where law enforcement is not yet involved or where a company is responding only to preliminary regulatory enquiries which it has no reason to believe will develop into an investigation. Legal advice privilege (LAP) is broader and applies to confidential communications between a client and its lawyers for the dominant purpose of giving or receiving legal advice. LAP is therefore more likely to be relevant in the investigation context and could apply soon after the point where a company has uncovered, or been alerted to, potential wrongdoing, provided the company seeks legal advice at an early stage.
Over the years, the scope of the protection afforded by LAP has ebbed and flowed. Key concepts such as the “continuum of communication” between lawyer and client and the “dominant purpose” for the creation of relevant materials have emerged as areas for argument and have been robustly tested in court. A grey area which remains is the question of who exactly the client is for the purposes of LAP. The courts’ decisions in two leading cases narrowed the scope of client communications, meaning that material collected from third parties or even employees which were not part of the client group authorised to obtain legal advice on the client’s behalf are not in scope.3 Although the Court of Appeal later cast doubt on the correctness of this approach, noting that large national and multinational corporations could be disadvantaged due to the way information is likely distributed around the corporation, it refrained from actually deciding the point.4 The matter remains up in the air for now.
A significant moment
A recent High Court decision has potentially expanded the scope of LAP significantly.
In Aabar Holdings S.À.R.L. & Ors v Glencore PLC & Ors,5 the court was asked whether LAP could apply beyond communications between a designated client group and the client’s lawyers. The judge decided that LAP could indeed extend to internal communications between, or documents created by, the client group, provided they are for the dominant purpose of seeking legal advice. He noted that certain documents would attract LAP because they fell within its settled definition (described above) and that there was therefore “no justification” for the restrictive approach of treating materially similar 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 accounted for the existence of the document – any differently.
This is of course a decision at first instance which could be changed on appeal and, for now, the narrow definition of the “client group” remains binding. But the decision is logical and the case may nevertheless give companies some welcome breathing room on LAP.
What this could mean for investigations
In the context of an internal investigation, it may be possible to claim LAP over documents which have been collated or created by various individuals (for the dominant purpose of seeking legal advice) even where no lawyer is directly involved in that step.
If the decision stands and is interpreted generously, companies will find themselves with considerably greater freedom and flexibility in the way they conduct the early parts of investigations. For example, a company’s employees – perhaps in an investigative function – may be able to create emails, notes, chronologies and other preparatory materials as part of initial factual investigations to then be presented to their lawyers for analysis and advice. However, it would remain prudent for a company to involve lawyers right from the start and allow them to have oversight of the process. This also ties in with how many large corporations have built out their own internal legal and compliance functions over the last 15 years, staffed by lawyers, former law enforcement officers and compliance specialists.
Once the investigation has started, the company may be able to use a slightly larger investigation team than usual, perhaps with sub-teams responsible for collecting certain types of information. This approach may be particularly valuable for larger corporations where the client group will be proportionately much smaller than the rest of the company, but where there is likely to be a large amount of material, distributed widely, to locate and collect.
Assertions of legal professional privilege in the shape of LAP may have been bolstered as a result of this decision, but caution is still needed. No matter how this new court decision ultimately affects the way in which a company is able to assert LAP, it will be vital for the company to establish and document a clear legal purpose for intra-client communications right at the beginning of any investigation. LPP will continue to evolve in the UK and, as always, expert advice should be sought.
1 See Popplewell LJ in Al Sadeq v Dechert & Ors [2024] EWCA Civ 28
2 See R v Derby Magistrates Court ex parte B [1996] AC 487 where the court stated, “The principle which runs through all these cases …. is that a man must be able to consult his lawyer in confidence, since otherwise he might hold back half the truth. The client must be sure that what he tells his lawyer in confidence will never be revealed without his consent”.
3 Three Rivers (No.5) [2003] EWCA Civ 474; Re RBS Rights Issue [2016] EWHC 3161 (Ch)
4 Director of the Serious Fraud Office v Eurasian Natural Resources Corporation Ltd [2018] EWCA Civ 2006; R (on the application of Jet2.com Ltd) v Civil Aviation Authority [2020] EWCA Civ 35
5 [2026] EWHC 877 (Comm)
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