Macaura v Northern Assurance

This judgment follows a hearing at which a number of important privilege-related issues were addressed. As explained shortly, foremost amongst these are whether the so-called Shareholder Rule is valid and, if so, whether it applies not only to legal advice privilege and litigation privilege but also to without prejudice privilege.

The context in which these issues arise is a claim brought by the Claimant, Aabar Holdings S.à.r.l. (‘Aabar’) against Glencore Plc (‘Glencore’) and certain individuals.

Glencore is a global natural resources company and the ultimate parent company of the Glencore Group. Glencore was incorporated on 14 March 2011 under the laws of Jersey and is domiciled in Switzerland. Glencore’s shares were the subject of an Initial Public Offering (the ‘IPO’) on 19 May 2011 and Glencore subsequently acquired Xstrata Plc on 2 May 2013 (the ‘Merger’). Glencore’s shares are listed on the London Stock Exchange, with a market capitalisation of around £50 billion.

Aabar, otherwise known in this litigation context as the ‘QE Claimant’ reflecting the fact that it is represented by Quinn Emanuel Urquhart & Sullivan UK LLP, is a private company incorporated in Luxembourg which is ultimately owned by the Government of the Emirate of Abu Dhabi (or its sovereign wealth fund).

The various Claimants say that, as a result of the alleged and/or admitted misconduct on which they rely, certain documents issued by Glencore contained misstatements and/or omitted matters which they should have included and that each of the Claimants have incurred losses on their alleged investments in Glencore as a result.