The court gave (privilege), and the court has taken (privilege) away: a pair of updates on legal advice privilege in England and Wales
1 June 2026
In two recent cases, the courts and tribunals have given important updates on circumstances in which privilege exists, and when privilege can be lost:
- Aabar Holding SARL v Glencore plc [2026] EWHC 877 (Comm)
- UK v Secretary of State for the Home Department [2026] UKUT 81 (IAC)
The consequences of these cases are important to be aware of, not just for legal professionals but also for parties to litigation.
For those unfamiliar with privilege, privileged documents are documents which contain information which is relevant to an ongoing case, but which a party is not obliged to allow its opponent or the court to see.
Glencore – legal advice privilege includes certain intra-client communications
Where a litigant is a corporate entity, the position in English law has been that legal advice privilege (the privilege associated with documents and communications between a solicitor and their client for the purpose of seeking legal advice) does not attach to documents (including communications) created by and passed between employees of the corporate litigant who are tasked with seeking that advice (the so-called “client group”).
However, in Glencore the court decided that this position is different where the dominant purpose of those intra-client documents passed between the client group was to “identify an issue on which the client proposes to seek advice from a lawyer” (55) or to “identify facts that the client proposes to communicate to a lawyer for the purpose of seeking legal advice” (57).
While the Glencore case expands legal advice privilege to include a category of intra-client communications and documents, that category is limited to only the documents and communications created within the client group and for a specific purpose. Caution must therefore still be exercised when corresponding within the business about matters that are or could become subject to litigation.
UK v SoS for the Home Department – privilege can be lost when documents that are otherwise privileged are uploaded into a public AI system
An essential component of privilege is that the document in question must be confidential; if a document is publicly available a litigant cannot assert that it cannot be seen by their opponent or the court in court proceedings.
AI Guidance for Judicial Office Holders published on 31 October 2025 stated that “any information that you input into a public AI chatbot should be seen as being published to all the world”, but for a while there was no test case in England and Wales to confirm how the courts would treat documents uploaded to public AI systems (and the outputs of those systems) for the purposes of privilege.
UK v SoS for the Home Department was that test case. The Upper Tribunal’s judgment concluded that “uploading confidential documents into an open-source AI tool, such as ChatGPT, is to place this information on the internet in the public domain, and thus to … waive legal privilege” (60).
As AI tools are increasingly part of people’s lives and businesses’ work, it is important for litigants and potential litigants to be aware of the risk that exists. While some AI systems are secure (and may be useable without waiving confidentiality), most publicly available tools should generally be used with extreme caution when dealing with matters that are or could become subject to litigation.
Conclusion
- Intra-client communications, even communications about the case, are not guaranteed to be privileged. There is, however, now a category of such communications to which legal advice privilege does attach: those passed between the client group with the dominant purpose of identifying issues and facts on which to seek advice. Caution must nevertheless still be exercised when discussing the case within a corporate client.
- Documents uploaded into a public AI tool cease to be privileged, whether uploaded by a lawyer or the client. The same is true for all other inputs and outputs to and from a public AI tool. Extreme caution must be exercised when using these tools.
