From 9 July 2018, derivative actions commenced in Bermuda may
not be continued without leave from the Supreme Court. Until now
the right to pursue claims derivatively was governed exclusively by
the common law, and in particular the various exceptions to the
rule in Foss v Harbottle (1843) 2 Hare 461. The
introduction of a formal requirement of judicial leave brings
Bermuda into line with other offshore jurisdictions such as the
Cayman Islands and BVI, and should provide additional protection
against frivolous or vexatious shareholder claims.
The requirement comes by way of amendments to the Rules of the
Supreme Court 1985. A new rule 12A has been added within Order 15,
in terms which replicate an equivalent provision in the Cayman
Islands' Grand Court Rules 1995. Notable aspects of the new
rule include:
