Legal advice privilege protects communications between a lawyer and a client for the purpose of obtaining legal advice. But what about internal client communications for the purpose of supporting a request for legal advice?
Such communications could include:
- emails between employees identifying an issue for legal advice;
- internal notes or emails prepared by an employee in anticipation of discussing the matter with a lawyer; and
- possibly, reports prepared during an internal investigation for the purpose of seeking legal advice.
The UK Commercial Court recently confirmed the privileged status of these communications at common law. Below we consider what this decision means for the law of privilege in New Zealand.
Types of privilege
There are two types of legal professional privilege:
- Legal advice privilege: this privilege applies to communications between a client and a lawyer for the purpose of obtaining legal advice.
- Litigation privilege: this privilege applies to all communications or information created for the dominant purpose of preparing for actual or apprehended litigation. It does extend to communications with third parties. There is no doubt that internal emails for the purposes of litigation can be subject to litigation privilege.
This case update is concerned with legal advice privilege.
Background to the judgment
Aabar Holdings SARL v Glencore Plc is a long-running securities claim before the English Court.
Investors in Glencore Plc (Glencore) are bringing claims alleging misstatements in prospectuses Glencore issued in connection with an IPO and a subsequent merger, and other reporting documents.
During disclosure, Glencore claimed legal advice privilege over some internal communications – i.e. those which were not sent to or by an in-house or external lawyer.
The investors challenged Glencore’s claim to legal advice privilege. They argued that internal client communications are not entitled to legal advice privilege unless those communications:
- evidence the substance of privileged communications between the client and a lawyer (e.g. by repeating it or summarising it); or
- were prepared with the intention of being sent to the lawyer, even if not in fact communicated (e.g. draft emails or letters which were never sent).
Those two exceptions – which the common law had previously recognised – would cover some internal documents, but not the examples identified at the beginning of this update.
The Court’s decision
The Court upheld the claim to privilege.1
It rejected the investors’ submission that binding authority precluded a conclusion that privilege existed.
It went on to conclude that internal client 2 communications for the purpose 3 of legal advice should be privileged as a matter of principle:4
- While it is “often said” that legal advice privilege attaches only to communications between a lawyer and a client, there are well-recognised exceptions.
- It would make “no sense” for legal advice privilege to be limited in the way the investors submitted.
- For example, it would be “illogical” to recognise privilege over an engagement letter identifying the issue on which advice will be sought, but not an earlier internal client document identifying that same issue before the lawyer is approached.
- The privileged status should turn on the reason the document came into existence, rather than on whether there was a communication to the lawyer; that is, whether it was brought into existence in connection with obtaining or providing legal advice.5
Implications for New Zealand
In New Zealand, the Evidence Act 2006 governs questions of privilege in proceedings before the Supreme Court, Court of Appeal, High Court and District Court.
Section 54 provides that legal advice privilege applies to:
any communication between the [client] and the legal adviser if the communication was:
- intended to be confidential; and
- made in the course of and for the purpose of (i) the person requesting or obtaining professional legal services from the legal adviser; or (ii) the legal adviser giving such services to the person.
Read literally, section 54 would not cover internal communications or preparatory documents because the privilege only attaches to “communications between” a legal adviser and their client. Some commentators agree with this view.6
On the other hand:
- In the course of examining the reform of the Evidence Act 1908, the Law Commission’s indication was that section 54 would simply restate (and not vary) the common law. 7 The common law at this point extended legal advice privilege to materials brought into existence for the purpose of obtaining or providing legal services even if the material was not, in fact, communicated to a legal adviser.
- The New Zealand High Court has indicated a willingness to interpret section 54 consistently with the common law, albeit without detailed analysis of the wording of the section.8
- We have seen parties assert and accept claims to legal advice privilege over internal emails connected to legal advice.9
- In many cases, claims to privilege over internal emails may be justified on the separate basis that they discuss privileged information (e.g. the content of legal advice) in a way which justifies reliance on section 54.
- Consistent with the above, there are very few examples in New Zealand of parties challenging claims for privilege over internal communications connected to legal advice.
In 2024 the Law Commission recommended that section 54 be amended to clarify that the privilege extends to “any document” that is confidential and prepared for the purpose of legal advice. That recommendation has not yet been accepted or implemented.10
Pending any such development, Aabar would support a broader formulation of legal advice privilege that extends to internal communications. Aabar may also be directly relevant to questions of privilege in proceedings which are not governed at all by the Evidence Act 2006 (in particular, arbitrations).
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1. Aabar Holdings SARL v Glencore Plc [2026] EWHC 877 (Comm).
2. A further issue is who qualifies as “the client” for identifying internal “client” communications. England takes a narrow approach on this issue in corporate contexts (see Three Rivers District Council v Governor and Company of the Bank of England (No 5) [2003] QB 1556 (CA)) which New Zealand or other common law jurisdictions have not adopted.
3. The Court used the language of “dominant purpose” in line with the English decision in
R (Jet2.com) v CAA [2020] QB 1027 (CA). New Zealand has not traditionally applied a “dominant purpose” test to legal advice privilege.
4. Aabar Holdings SARL v Glencore Plc [2026] EWHC 877 (Comm) at [52]-[61].
5. Support for the privileged status of internal communications could be found in some recent cases relied on by Glencore (albeit the issue was not specifically argued in those cases).
6. E.g. Elisabeth McDonald and Scott Optical (eds) Mahoney on Evidence: Act & Analysis (2nd ed, Thomson Reuters, Wellington, 2024) at [EV54.02(2)].
7. Law Commission Evidence: Evidence Code and Commentary (NZLC R55 Vol 2, 1999) at [C244].
8. E.g. Southern Ranges Ltd v Commissioner of Crown Lands [2022] NZHC 741 at [16]; R v Huang HC Auckland, CRI 2005-004-21953, 19 September 2007 at [55]-[57]; Bain v Minister of Justice [2013] NZHC 2123 at [143]; Gowing & Co Lawyers Ltd v New Zealand Police [2013] NZHC 2177 at [19].
9. Law Commission The Third Review of the Evidence Act 2006 (NZLC R148, 2024) at [13.2]-[13.15].
10. On 11 September 2024, the Government responded to the Law Commission’s review. It stated that, while the privilege proposals were “minor and technical”, other proposals (unrelated to privilege) were more substantial and required further policy work. It indicated that “advancing this work is likely to take some time” and would need to be balanced against other Government priorities.
Disclaimer: This publication is necessarily brief and general in nature. You should seek professional advice before taking any action in relation to the matters dealt with in this publication.
