BERMUDA Trends and Developments Contributed by: John Wasty, Claire van Overdijk, Sam Riihiluoma, James Batten and Jordan Knight, Appleby
The Jardine Appeals In July 2025, Bermuda’s final appeals court, the Privy Council in London, delivered two judgments arising from a dispute following the amalgamation of Jardine Strategic Limited (Jardine) and JMH Bermuda Ltd. As part of the amalgamation, Jardine offered sharehold- ers USD33 per share. Over 80 shareholders consid- ered that too low and commenced appraisal proceed- ings under section 106 of Bermuda’s Companies Act 1981. The first judgment of the Privy Council – Jardine Stra- tegic Limited v Oasis Investments II Master Fund Ltd et al (No 1) [2025] UKPC 33 – concerned Jardine’s application for summary judgment against the dis- senting shareholders who acquired their shares after an announcement of the proposed amalgamation and before the shareholder meeting approving the amal- gamation. Jardine argued that section 106 is intended to protect only long-term shareholders, ie, those who acquired shares before the announcement. The Privy Council disagreed, however, finding that the right to bring appraisal proceedings is available to all those who hold shares at the date of the shareholder meet - ing and that fair value is to be determined objective- ly, without reference to the motives of the acquiring shareholders. The Privy Council’s second judgment – Jardine Strate- gic Limited v Oasis Investments II Master Fund Ltd et al (No 2) [2025] UKPC 34 – concerned the dissenting shareholders’ application for Jardine to disclose legal advice it received in valuing the shares. The dissent- ing shareholders contended that they were entitled to see the legal advice obtained by Jardine, relying on the “shareholder rule”, which has historically pre- vented companies from asserting legal advice privi- lege against their own shareholders. The ‘shareholder rule’ has been applied in England and Wales, as well as other common law jurisdictions, for over 140 years. The disclosure judgment represents a landmark decision, as the Privy Council abolished the share- holder rule (and refused to order disclosure of the legal advice). The Privy Council found that dissenting shareholders could not claim a proprietary interest in the legal advice, as the advice belonged to Jardine as a distinct legal entity separate from its shareholders.
Moreover, the Privy Council found that there was no ‘joint interest’ between Jardine and the shareholders in respect of Jardine’s valuation of the shares, and therefore the shareholders had no joint interest in receiving copies of the advice. The Glendina Case In February 2025, the Bermuda Supreme Court deliv- ered judgment in Glendina Pty Limited et al v NKWE Platinum Ltd (2025) SC (Bda) 15 Civ. Glendina was concerned about whether dissenting shareholders received fair value for their shares in a Bermuda com- pany whose main asset was a mine in South Africa. The Judge hearing the case, Justice Martin, awarded the dissenting shareholders a 30% uplift on the offer price. His judgment clarifies several important aspects of the law, including the following: Where independent directors have been appointed to assess fair value, they must ensure the offer price reflects what they independently consider to repre- sent fair value. Furthermore, it would be prudent for independent directors to take independent advice regarding their duties under Bermuda law, as well as independent financial advice, to assist them in review- ing the valuation materials provided by the company. If the court finds that shareholders were paid less than fair value, they are entitled to receive simple interest at a rate of 3.5% per annum from the date of the amal- gamation until payment is made. This is because the appraisal process results in a judgment debt, which is subject to the statutory interest rate that applies to such debts. Section C: Trust and Estates Amendments to trust legislation Bermuda has introduced significant amendments to the Trustee Act 1975 making it clear that when con- sidering the exercise of powers of investment, trus- tees may take into account not only financial returns but also the views of settlors and beneficiaries on the broader impact of the trust’s investments on society, the environment, or otherwise, as well as other mate - rial factors that might affect financial performance. The amendments to the trust legislation enacted by the Trustee Amendment Act 2025 (which came into
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