Jardine Strategic Limited v Oasis Investments II Master Fund Ltd and 80 others (Bermuda)

Under a statutory amalgamation scheme, a shareholder who did not vote in favour and is dissatisfied with the value offered may seek a court appraisal. That right is not confined to persons registered when the meeting notice was issued. The statutory reference to value being offered does not create a contractual offer. Fair value is a single, objectively determined value, unaffected by when a shareholder acquired the shares or by the shareholder’s motives. Later purchasers’ appraisal proceedings are not, for that reason alone, an abuse of process.

Jardine Strategic Limited appealed to the Privy Council from the unanimous decision of the Court of Appeal for Bermuda, which had upheld Hargun CJ’s dismissal of applications to strike out appraisal proceedings. The proceedings arose from an amalgamation under sections 104–109 of the Companies Act 1981 of Bermuda. Minority shares were cancelled for cash, and shareholders who acquired shares after the meeting notice sought appraisal under section 106(6).

The appeal concerned whether only shareholders registered when the notice was issued had standing; whether later purchasers’ claims were an abuse of process; and whether acquisition timing and motive could affect fair value.

1. Appeal dismissed. The Board advised His Majesty accordingly.
2. Standing under section 106(6) is determined by construing section 106 in its statutory context and having regard to its purpose. The amalgamation procedure is wholly statutory. It involves no contractual offer capable of acceptance or rejection, and the reference to a shareholder having been offered fair value does not identify a class of shareholders to whom an offer was made.
3. A dissenting shareholder is one who does not vote in favour of the amalgamation at the meeting convened under the notice. The natural reading is that shareholders at the meeting, as owners of the shares affected by the amalgamation, may seek appraisal, absent clear words restricting that right to shareholders registered when notice was given. The notice is a notice of meeting, not an offer.
4. The Board did not need finally to resolve whether section 106(2) separately entitles a dissenting shareholder to receive the value stated in the notice. Even assuming the appellant’s construction on that point, the proposed restriction on standing was wrong. Section 106(2A) was also difficult to reconcile with treating the notice statements as an integral contractual offer.
5. The abuse-of-process ground failed. It depended on the rejected premise that appraisal rights are an opt-out reserved for shareholders facing a fundamental change in the enterprise at the time of the proposal. Knowledge of the proposal and an intention to litigate fair value did not remove statutory standing.
6. Section 106 requires the court to appraise fair value objectively and as a single value. It is not adjusted by reference to the timing or circumstances of an individual acquisition or the shareholder’s motives. The Board did not determine questions concerning discounts for minority holdings.

• Privy Council: [2025] UKPC 33 dismissed the appeal and advised His Majesty accordingly.
• Court of Appeal for Bermuda: unanimously upheld Hargun CJ’s dismissal of the applications to strike out the appraisal proceedings.
• Hargun CJ: dismissed the applications to strike out proceedings brought by shareholders who acquired shares after the meeting notice.