Legal privilege: What’s new?

30 Oct 2026 6 min read

Legal privilege is evolving. Here’s what you need to know.

This update highlights the latest developments in legal privilege. To arrange a complimentary 30-minute training session for your organisation, or to discuss any of the topics in more detail, please email us below or contact any of our key leads at Burges Salmon.

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This update is current as of 30 September 2026 and does not cover subsequent developments.

Key takeaways

Internal client emails

The High Court has confirmed that legal advice privilege can extend to communications between members of the client group, even where no lawyer is involved, provided their dominant purpose is to seek or receive legal advice. Caution is still needed as we understand this decision is being appealed.

AI and privilege

The use of AI may threaten the fundamentals of privilege. Will the principles of privilege adapt, or are we in risky waters? Our expert in AI, Tom Whittaker, provides some thoughts on this topic.

Directors and privilege

Sharing privileged material with a director does not normally waive privilege. However, the company’s clear authority is needed before that material can be shared further, an important point for investor directors who may be wearing two hats.

1. Are your internal emails protected? A new perspective on legal advice privilege

The latest decision in Glencore has brought renewed focus to legal advice privilege and its application to internal communications. It confirms that intra client communications can be protected by legal advice privilege, but the narrow definition of who constitutes the “client” still applies, and the main purpose of that communication must be to seek or give legal advice. It is important to remember that Glencore does not give a blanket protection to all internal communications within a client organisation.

Key point

“Glencore does not give a blanket protection to all internal communications within a client organisation.”

Areas impacted

Where contentious proceedings are not yet on the horizon, but the protection of privilege may later be needed. It is critical to be aware of this development, especially when dealing with sensitive internal investigations or when an organisation is responding to an incident.

2. AI and privilege: Don’t get caught out

AI is developing at a fast pace, but judicial guidance is clear – anything which is uploaded to a public AI system loses confidentiality. Confidentiality is at the heart of legal privilege and herein lies the problem.

Discussion has begun on how privilege could evolve to address increased AI usage, especially with litigants in person. Can we learn any lessons from the cases coming out of the USA?

NLJ this week: AI privilege battles expose risks | New Law Journal | The leading weekly legal magazine.

Key point

“Anything which is uploaded to a public AI system loses confidentiality.”

Areas impacted

AI use across the organisation, wherever teams handle confidential or potentially privileged information.

3. Without prejudice privilege: Is it really WP?

The label “Without Prejudice” is bandied about frequently when potentially litigious situations arise, but is the label giving you the protection you need? 2026 has seen a lot of cases concerning the without prejudice rule.

One Unique v Babaee serves as a helpful reminder that simply labelling emails “without prejudice” is not enough. In this case emails were admissible as evidence because, viewed objectively, they were demands for full repayment rather than a genuine attempt to reach a settlement, meaning without prejudice privilege did not apply. Careful consideration is needed when approaching settlement but understanding the WP rule is certainly a useful starter.

Key point

“Simply labelling emails ‘without prejudice’ is not enough.”

Areas impacted

Any organisation which needs to rely on the Without Prejudice protection.

4. Directors and privilege material

Directors have limited rights to company information, but what happens when individuals cease to be directors? While this remains a developing area, Serendipity Centre Ltd v Tinson is a useful reminder that these issues can arise and need careful consideration. In Serendipity, the company unsuccessfully claimed legal professional privilege over advice obtained by its former sole director on the company’s behalf, because the advice was not treated as confidential as between the company and the director. In Curve OS Group Ltd, the court confirmed that a company does not lose legal privilege simply because legal advice is shared with its directors. The decision also highlights that directors, including investor-appointed directors, are expected to act in the interests of the company when receiving and using that advice.

Key point

“A company does not lose legal privilege simply because legal advice is shared with its directors.”

Areas impacted

If directors are handling potentially sensitive information and/or may face liability in their personal capacity at a later date.

5. Privilege hunting is off the cards

You cannot use underhand tactics to get hold of the other side’s confidential legal advice. That was the clear message from the court in the “privilege hunting” case of Salinas Pliego v Astor Asset Management 3 Ltd where the claimants’ private investigators targeted the defendants’ lawyer to divulge legally privileged material. That was a clear abuse of process, notwithstanding the possibility that some of the material obtained may not be privileged because of the iniquity exception.

In Loudmila Bourlakova & Ors v Semen Anufriev & Ors [2026] EWHC 1747 (Ch) the claimants hired investigators to gather information to support their claims of fraud. In that case, the Court found that the claimants had not deliberately set out to obtain legally privileged material. The Court also declined to recognise any rule that the instruction of investigators to obtain confidential information without consent would be iniquitous per se (such that related communications could not be privileged), recognising that to do so could hamper legitimate efforts to uncover evidence of suspected fraud and place disproportionate constraints on investigations into wrongdoing.