May 2024
In March 2024, the Bermuda Court of Appeal held for the first time that joint interest privilege entitles shareholders (former and successive) to access a company’s privileged documents (see Re Jardine Strategic Holdings Limited [2024] CA (Bda) 7 Civ). The Court also ruled a parent is not required to disclose documents held by its subsidiary unless the documents are within the parent’s legal or “practical control”.
Background
The substantive dispute concerned whether a fair and reasonable price had been paid in a compulsory buy-out of shares in an amalgamating public company.
The amalgamating companies were Jardine Strategic Holdings (the “Company”) and JMH Bermuda (“JMH”). Both the Company and JMH were incorporated in Bermuda.
Prior to the amalgamation, JMH, the ultimate holding company of the group, owned approximately 85% of the shares in the Company, the intermediate holding company of the group. The remaining 15% of the Company shares were publicly traded on the London Stock Exchange with secondary listings in Singapore and Bermuda. In March 2021, the Company announced the proposed amalgamation whereby JMH would acquire the 15% of the Company’s shares it did not already own. An independent subcommittee of the board (advised by third-party financial advisers) determined the fair value of the shares as USD $33 per share.
Read more here: https://www.cdr-news.com/categories/expert-views/20721-discovery-complications-between-related-entities-privilege-and-the-shareholder-principle