UKSC/2025/0012

Aabar Holdings S.à.r.l. (Appellant) v Glencore plc and others (Respondents)

Permission to Appeal refused

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Case summary

Case ID

UKSC/2025/0012

Parties

Appellant(s)

Aabar Holdings S.à.r.l.

Respondent(s)

Glencore plc

Ivan Glasenberg

Anthony Bryan Hayward

Steven Frank Kalmin

Issue

(1) Should Aabar be granted permission to appeal directly to the Supreme Court from a judgment of the High Court? (2) If so, is there a rule of English law which prevents a company from asserting privilege against its own shareholders?

Facts

Glencore is a global natural resources company whose shares have been listed on the London Stock Exchange since its Initial Public Offering (“IPO”) on 19 May 2011. Aabar is a private company incorporated in Luxembourg which is ultimately owned by the Government of the Emirate of Abu Dhabi. Aabar alleges that it was the sole shareholder of another Luxembourg company, Commodities S.à.r.l., between 29 March 2012 and 20 December 2021. That company (it is alleged) was the ultimate beneficial owner of shares in Glencore in that it held intermediated securities through CREST between 24 May 2011 and 28 December 2020. On 20 December 2021, Commodities was dissolved and Aabar claims that, immediately upon that event, all of the assets and liabilities of Commodities were transferred to Aabar under Luxembourgish law. Aabar is one of a number of a claimants who have brought claims against Glencore. In summary, the claims relate to alleged (and, in some cases, admitted) misconduct by certain subsidiary companies in the Glencore Group in certain countries in Africa and South America. Aabar claims 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 to disclose other matters which they should have included and that, as a result, Aabar has suffered losses on its alleged investments in Glencore. Aabar brought a claim under section 90 of the Financial Services and Markets Act 2000 (“FSMA”) in relation to the contents of the prospectus issued by Glencore on 4 May 2011 in relation to its IPO. Aabar also brought a claim under section 90A and Schedule 10A FSMA in relation to certain reports and other information published by Glencore. Aabar also brought a contractual claim under an investment agreement as well as common law claims in the torts of deceit and/or negligent misstatement. Claims were also brought against three former directors of Glencore. In the run-up to the case management hearing, a preliminary dispute arose in correspondence as to whether (and, if so, in what circumstances) Glencore would be entitled to assert privilege against Aabar in these proceedings. The High Court held that no principle exists under English law whereby a company cannot assert privilege against its own shareholder. The High Court then made a number of further rulings on issues that would only have arisen if, contrary to its main ruling, such a principle does exist. The High Court granted permission to appeal (i) to Aabar on its main ruling and one issue that did not arise, and (ii) to Glencore on three issues that did not arise. The High Court also granted a “leapfrog” certificate under section 12 of the Administration of Justice Act 1969. Aabar now appeals, and Glencore cross-appeals, directly to the Supreme Court, with the preliminary question being whether Aabar should be granted permission to appeal directly to the Supreme Court rather than appealing first to the Court of Appeal.