Directors’ fiduciary and common law duties

The starting point under Cayman Islands law is that directors owe fiduciary and common law duties to the company, except to the extent those duties are legitimately limited by the company’s constitutional documents. The former category includes duties to (i) act in good faith in the company’s best interests and (ii) exercise powers for a proper purpose, whilst the latter includes the duty to exercise reasonable care, skill and diligence. In certain circumstances, directors may also owe duties to individual shareholders.

Where company directors fail to properly discharge their duties, particularly their fiduciary duties, in a way that amounts to minority oppression, Cayman Islands law provides several potential avenues to relief, which we summarise below.

Winding up on just and equitable grounds

Under section 92(e) of the Act, a minority shareholder can petition the Grand Court of the Cayman Islands to wind up the company on the ground that it would be “just and equitable” to do so. While this is not labelled an “oppression” or “unfair prejudice” provision, in practice, it may be used by minority shareholders who believe that the majority shareholders (or controlling shareholders) are infringing their rights.

This provision may be relied upon if, for example, there has been:

fraud, dishonesty or serious mismanagement;
a fundamental breakdown in mutual trust and confidence between the shareholders (particularly in companies which have elements of a quasi-partnership); or
a deadlock in the management of the company occurs which results in the inability to reach agreement on key decisions and effectively renders the company’s business unworkable.

While a petition under section 92(e) of the Act formally seeks to wind up a company, the Grand Court nonetheless has the jurisdiction under the Act, and a wide discretion, to grant alternative relief if it would adequately address the issue without winding up the company. A relatively common outcome is an order requiring the majority shareholders or the company to purchase the minority shareholder’s shares at fair value (which is a functional equivalent to an unfair prejudice buyout remedy in other jurisdictions). However, the Court also has discretion to grant other relief, such as regulating the company’s future affairs or authorising the petitioning shareholder to bring a derivative action.

Derivative actions

In cases of harm to the company which may not warrant a just and equitable winding up (such as less egregious director mismanagement or fiduciary duty breaches), and where the company is under wrongdoer control and unable to act for itself, the common law exceptions to the rule in Foss v Harbottle (1843) 2 Hare 461, 67 ER 189 (i.e. that the company is the proper plaintiff) may apply and permit the shareholder to bring a derivative action itself on the company’s behalf.

Although this mechanism is designed to protect the company rather than individual shareholders, it can indirectly address oppressive conduct by preventing further harm being indirectly suffered by a minority. As noted above, it may, in some cases, also be seen by the Court to be a more suitable alternative to a winding up of the company on the just and equitable ground.

Personal actions

In certain circumstances, a minority shareholder may instead have a personal claim against the directors and bring an action in its own name – specifically where an individual right has been breached causing direct loss to the shareholder and the company itself has no claim for redress. For example, this could arise where the board breaches the minority shareholder’s individual rights (including those under the company’s articles of association) by misleading the minority shareholder into approving a cash-out merger which has been brought about by undisclosed self-dealing.

Although these actions do not directly address wider minority oppression per se, they can provide relief where the harmful conduct involves breaching obligations specifically owed to an individual shareholder.

Dissenting rights in mergers or consolidations

In the context of mergers or consolidations under Part 16 of the Act, shareholders who disagree with the terms have the right to dissent from the transaction. Although the right of dissent will not prevent a merger or consolidation approved by the requisite majority, dissenting minority shareholders (who comply with the statutory requirements) are entitled to payment of the “fair value” of their shares, as determined by the Grand Court. This process safeguards their property rights and ensures an equitable exit.

Importantly, the right to have fair value judicially determined and paid does not depend on the dissenting minority shareholders proving any breach of duty (fiduciary or otherwise) by the directors who brought about the transaction – the Court’s sole focus is whether the price offered for their shares in the transaction was fair and, if not, what price is fair. While complex valuation issues may well arise (often requiring expert evidence), the threshold for relief is simply to persuade the Court, on the balance of probabilities, that a higher price is fair.

Constitutional documents

In addition to those statutory and common law avenues to relief, a company’s articles of association or a shareholders agreement can themselves offer a more “proactive” safeguard for minority shareholders by incorporating:

supermajority approval requirements for actions requiring shareholder approval such as mergers, amendments to the company’s constitutional documents, or voluntary winding up;
reserved matters or veto rights which curtail the ability of the board to approve certain matters without a minority shareholder’s approval;
the right to appoint directors;
pre-emptive rights on the issue and/or transfer of shares;
information rights;
tag along rights;
put options; and
deadlock / alternative dispute resolution mechanisms.

Where breaches of such contractual protections are threatened, a minority shareholder may be able to obtain an injunction to prevent the breach from occurring. Alternatively, where the breach has occurred, a minority shareholder is likely to be able to obtain relief through one of the avenues described above.

Minority shareholders therefore have several safeguards and avenues for relief from unfair prejudice under Cayman Islands law, even though there is no freestanding statutory regime to address claims for unfair prejudice. That said, litigation is often complex, costly, and time-consuming, and is usually only pursued once the company’s affairs have significantly deteriorated. Carefully structuring the company’s articles of association to establish a strong governance and protection framework is typically the most effective way to safeguard minority interests and is the fundamental first step. With that framework in place, any future disputes are likely to be far less complex and expensive to resolve.