Aabar Holdings SARL v Glencore PLC & Ors [2024] EWHC 3046 (Comm) (27 November 2024)

Aabar Holdings SARL v Glencore PLC & Ors [2024] EWHC 3046 (Comm) (27 November 2024)

The Shareholder Rule exists in English law but its foundation is historically proprietary, now undermined by the principle of corporate personality. The Rule is recognized but its rationale is shaky; it applies only to registered shareholders, not ultimate beneficial owners, and is limited to legal advice privilege, not litigation privilege or without prejudice privilege. The Rule does not extend to subsidiaries. Glencore may assert privilege against Aabar.

Citation
[2024] EWHC 3046 (Comm)
Parties
Claimant: Aabar Holdings S.À. R. L.; First Defendant: Glencore PLC; Second Defendant: Ivan Glasenberg; Third Defendant: Anthony Bryan Hayward; Fourth Defendant: Steven Frank Kalmin
Jurisdiction
England and Wales
Judgment Date
27 November 2024
Procedural Posture
Commercial Court Financial List Claim / Interlocutory Judgment on Privilege Issues
Outcome
Privilege issues determined: Shareholder Rule exists but is limited; Glencore entitled to assert privilege against Aabar.
Legal Topics
Legal Professional Privilege, Shareholder Rights, Joint Interest Privilege, Litigation Exception
Company Law Civil Procedure Evidence Legal Professional Privilege Shareholder Rights Joint Interest Privilege Litigation Exception

Case Brief

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Parties

Aabar Holdings S.À. R. L.

Claimant

Glencore PLC

First Defendant

Ivan Glasenberg

Second Defendant

Anthony Bryan Hayward

Third Defendant

Steven Frank Kalmin

Fourth Defendant

Procedural Posture

Commercial Court Financial List Claim / Interlocutory Judgment on Privilege Issues

Legal Issues

  1. 1 Does the Shareholder Rule exist in English law?
  2. 2 Does the Shareholder Rule apply to legal advice privilege, litigation privilege, and without prejudice privilege?
  3. 3 Does the Shareholder Rule extend to ultimate beneficial owners or only registered shareholders?

Ratio Decidendi

The Shareholder Rule exists in English law but its foundation is historically proprietary, now undermined by the principle of corporate personality. The Rule is recognized but its rationale is shaky; it applies only to registered shareholders, not ultimate beneficial owners, and is limited to legal advice privilege, not litigation privilege or without prejudice privilege. The Rule does not extend to subsidiaries. Glencore may assert privilege against Aabar.

Court Disposition

Privilege issues determined: Shareholder Rule exists but is limited; Glencore entitled to assert privilege against Aabar.

Orders

  • Glencore may withhold privileged documents from Aabar except those relating to periods when Aabar was a registered shareholder, if any.
  • Shareholder Rule does not apply to ultimate beneficial owners or subsidiaries.