G4S PLC Case: Court Upholds Company Privilege Over Shareholder Documents

Citation: [2023] EWHC 2863 (Ch)
Judgment on

Introduction

The case “Various Claimants v G4S PLC: 2023” addresses complex legal issues related to the assertion of privilege over company documents between a company and its shareholders. Mr Justice Michael Green delivered a judgment on a specific application concerning whether G4S PLC could withhold documents on the grounds of privilege from its shareholders. This matter was set against the background of litigation under section 90A and Schedule 10A of the Financial Services and Markets Act 2000 (FSMA).

Key Facts

The claimants, in this case, were institutional shareholders or claimed to have been shareholders of G4S PLC and brought claims against G4S PLC under s.90A and Schedule 10A FSMA. They alleged false statements in G4S PLC’s published information related to the “Wrongful Billing” of government contracts and the “Financial Model Fraud.” There was an issue as to whether the claimants, as shareholders, were entitled to see privileged documents held by the company based on the so-called “shareholder principle.”

The Shareholder Principle

The “shareholder principle” advanced by the claimants hinged on the notion that a company cannot claim privilege against its own shareholders, except where documents were produced in anticipation of or for the dominant purpose of proceedings between the company and its shareholders. The principle suggested an entitlement for shareholders to access company documents including those covered by legal privilege, underpinned by decisions such as “Sharp v Blank” [2015] EWHC 2681 (Ch) and “Woodhouse and Co (Limited) v Woodhouse” [1914] 30 TLR 559. However, Mr Rabinowitz, QC for the defendants, argued against the broad application of this principle, particularly in the present circumstances.

Legal professional privilege, including legal advice privilege and litigation privilege, was central to the contested issues. Mr Rabinowitz contended that the principle should be narrowly applied and stressed the fundamental nature of privilege in the justice system, as underscored in cases like “R v Derby Magistrates’ Court” [1996] AC 487 and “McE v Prison Service of Northern Ireland” [2009] 1 AC 908.

The doctrine of shareholder entitlement to privileged documents traditionally pertained to registered shareholders. However, in modern share ownership practices, such as those involving the CREST system, many claimants held beneficial interests rather than being registered shareholders of G4S PLC.

Outcomes

The court ruled that:

  1. The “shareholder principle,” while recognized, has shaky foundations in contemporary corporate law given the separateness of company and shareholders post “Salomon v A Salomon & Co Ltd” [1897] AC 22.
  2. The rights arising from the principle apply to those who were registered shareholders at the time of the creation of the privileged documents, not to beneficial owners or to individuals who became shareholders post-creation.
  3. The principle extends, with some ambiguity on the point, to both legal advice and litigation privilege but does not extend to without prejudice privilege.
  4. Practically, due to case management issues and the timing of the application, the principle should not apply in this case, given that only a small subset of claimants would benefit, leading to disproportionate complications.

The application by the claimants was dismissed, thereby upholding the defendant’s claim of privilege over the contested documents.

Conclusion

The case reaffirms the crucial nature of privilege in legal proceedings and highlights the challenges of applying historical legal principles within modern contexts of share ownership and corporate structure. The judgment underscores that while legal principles may evolve, they do not easily extend to situations incongruent with foundational legal tenets such as the separateness of a company and its shareholders. Furthermore, case management and timing were instrumental in the ultimate denial of the shareholder principle’s application in this instance. The decision provides guidance on the narrow circumstances under which a court might compel disclosure of privileged documents to shareholders, emphasizing the enduring importance of privilege as a substantive legal right.

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