Global Distressed Alpha Capital I Limited v Herman – an important decision for Bermudian directors

On 23 June 2023 the Bermudian Court of Appeal (Sir Christopher Clarke P, Gloster JA, Smellie JA) handed down judgment in Global Distressed Alpha Capital I Limited v Herman [2023] CA (Bda) 12 Civ. Gregory Banner KC acted for the appellant, GDACI, successfully arguing that the usual broad Bermudian indemnity for directors contained in bye-laws of GDACI did not apply to a claim to account for unlawful profits or gains, even when fraud was not alleged; such claims were governed exclusively, and permitted, by a differently framed bye-law.

The case highlights the importance of carefully drafting Bermudian company bye-laws, and checking how successive bye-laws interact with each other – as Gloster JA put it “A proper construction ought to produce the result that each bye-law has a separate function – otherwise one or other bye-law is surplusage or otiose”.

Greg appeared with Lilla Zuill of Harneys Bermuda.

The judgment is here.