JCPC/2024/0077

Jardine Strategic Holdings Ltd and another (Appellant) v Oasis Investments II Master Fund Ltd and 80 others (Respondents) No 2 (Bermuda)

Case summary


Case ID

JCPC/2024/0077

Jurisdiction

Bermuda

Parties

Appellant(s)

Jardine Strategic Limited

Respondent(s)

(1) Oasis Investments II Master Fund Ltd

(2) Attestor Value Master Fund LP

(3) Maso Capital Investments Ltd,

(4) Blackwell Partners LLC - Series A,

(5) Star V Partners LLC,

(6) Citco Trustees (Cayman) Ltd (as trustee of the Allard Growth Fund),

(7) DMS UCITS Platform ICAV (act

Issue

What (if any) is the scope of the joint interest privilege enjoyed by the shareholders and former shareholders of Jardine Strategic Holdings Limited (the “First Appellant”) over legal advice obtained by the First Appellant? Can a company assert privilege over its legal advice against a shareholder only where litigation privilege is established, or from the time that the interests of the company and shareholder became adverse?

Facts

On 8 March 2021, the parent company of the Jardine Matheson group of companies announced plans (the “Announcement”) to simplify the structure of the group by amalgamating the First Appellant with JMH Bermuda Limited to form Jardine Strategic Limited (the “Second Appellant”). In accordance with section 106(2) of the Bermuda Companies Act 1981, notice of a general meeting to approve the amalgamation was given to the First Appellant’s shareholders on 17 March 2021. The notice confirmed that the First Appellant had determined the fair value of its shares at USD 33 per share. The First Appellant’s shareholders voted to approve the amalgamation on 12 April 2021 (an inevitable result, given that the parent company owned 84.9% of the shares) and the Second Appellant was formed on 14 April 2021. All of the shares in the First Appellant were cancelled and it ceased to exist. The 15.1% of the First Appellant’s shares that were held by shareholders other than the parent company (which includes all of the Respondents) were converted into a right to receive USD 33 per share. A group of 90 claimants brought actions by way of 18 summonses to the Supreme Court to appraise the fair value of their shares in the First Appellant pursuant to section 106(6) of the Bermuda Companies Act 1981. Nine of those claimants have since discontinued their claims. Of the remaining 81 claimants (the Respondents), none were shareholders of record of the First Appellant until after the Announcement and approximately 78% of them first acquired a beneficial interest in the shares through depositary receipts after the Announcement. Relevant to these proceedings, the Respondents applied for an order that that the Second Appellant produce documents created before 12 April 2021 over which it had asserted privilege. The Supreme Court found there to be: (1) joint interest privilege between the First Appellant and its shareholders, which prevents the Second Appellant from claiming privilege against the former shareholders of the First Appellant; and (2) litigation privilege available from 19 February 2021 when litigation was in reasonable contemplation. The Appellants appealed the decision on three grounds, while the Respondents cross-appealed on two grounds. The Court of Appeal dismissed the appeal and allowed the cross-appeal in part (finding the date from which litigation privilege was available to be 8 March 2021). The Appellants now appeal to the Judicial Committee of the Privy Council.

Date of issue

2 October 2024

Appeal


Hearing dates and panels are subject to change

Justices

Hearing dates

Start date

6 March 2025

End date

6 March 2025

Change log

Last updated 20 December 2024

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