Discovery Complications Between Related Entities, Privilege And The Shareholder Principle

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.