JUDGMENT

Harmindar Singh Dhaliwal FCJ:

Introduction

[1] There were two appeals before us, They revolve around issues pertaining to derivative actions brought under the Companies Act 2016 ("CA 2016"). These issues, as will become apparent later, are of great importance to directors and shareholders of companies. These issues arise where a wrong has been committed against the company. And sometimes when the wrongdoer is in control, no action can seemingly be taken to protect the interests of the company.

[2] The appeals were ordered to be heard together. They were appeals nos 02(f)- 31-04/2022(W) and 02(f)-32-04/2022(W). We will refer to them as Appeal 31 and Appeal 32 respectively in this judgment.

[3] The appeals arise out of the grant of leave by this Court on the following questions of law:

Appeal 31

Despite the abrogation by way of the Companies Act, 2016, s 347(3) of a complainant's right to bring a derivative action under common law, whether the principles under common law viz. the well entrenched exceptions to the rule in Foss v. Harbottle continue to apply for leave applications pursuant to s 348. ("Question 1")

Whether in determining an application for leave under s 348:

(i) The test to be applied by the Court is similar to the longestablished test to commence Judicial Review proceedings under Rules of Court, 2012, O 53, namely, that the application must not be frivolous; and

(ii) the jurisprudence developed in such proceedings apply. ("Question 2")

If the answers to Questions 1 and 2 are in the negative, what are the relevant principles to guide the High Court when determining an application for leave under s 348? ("Question 3")