The Federal Court has delivered another significant blow to Tokio Marine's legal strategy in the long-running Greensill insurance dispute, rejecting most of the Japanese insurer's claims of settlement privilege and ordering the disclosure of confidential communications with the prudential regulator — a development with implications well beyond the courtroom for Australian brokers.
In a ruling handed down on 28 April 2026, Justice Moshinsky decided privilege and discovery disputes spanning eleven interconnected proceedings. The case — White Oak Commercial Finance Europe (Non-Levered) Limited v Insurance Australia Limited (No 3) [2026] FCA 530 — involves White Oak, Insurance Australia Limited, Tokio Marine entities, Greensill Bank AG, Credit Suisse supply chain finance funds, and broker Marsh, all tangled together in the wreckage of Greensill Capital's 2021 collapse.
White Oak challenged claims of "without prejudice privilege" — the legal protection that typically shields settlement discussions from disclosure — asserted by BCC Trade Credit Pty Ltd, Tokio Marine & Nichido Fire Insurance Co Ltd, and Tokio Marine Management (Australasia) Pty Ltd, collectively referred to as the BCC/TM Parties.
The numbers themselves told a damning story. The BCC/TM Parties originally claimed privilege over 412 documents produced by other parties and 531 documents produced by Greensill Capital (UK) Limited. Those numbers shrank at the hearing — dropping to 176 and 397 respectively — with no explanation offered to the court.
Justice Moshinsky was unimpressed. The affidavit evidence supporting the privilege claims was found to be "general, conclusionary and not tied to specific documents." The decision to abandon claims over a large portion of the documents during the hearing, the court said, "severely undermined" the reliability of the evidence.
The court did uphold privilege over one narrow category. Documents relating to a specific claim known as the NMC Dispute survived scrutiny after a partner at Kennedys (United Kingdom) gave direct evidence that he was personally involved in the settlement negotiations and had reviewed each document. After inspecting them, the court confirmed they were exchanged as part of genuine settlement discussions.
On the question of waiver, the court also found in the BCC/TM Parties' favour on one key point: one party to a negotiation cannot ordinarily waive the shared privilege through unilateral action.
Perhaps most significant for the broader market is the court's separate order that Tokio Marine produce its communications with the Australian Prudential Regulation Authority. The court ordered the BCC/TM Parties to produce communications with APRA regarding a Notification of Breach by a General Insurer on or around 30 July 2020, finding reasonable grounds to be fairly certain that relevant documents existed but had not been discovered.
That notification dates to the period when, as Insurance Business Australia has reported, Tokio Marine's Australian subsidiary was grappling with the discovery that one of its underwriters had issued policies exceeding his authority — the fault line at the heart of the entire Greensill disaster.
In July 2020, a group of insurers led by Tokio Marine, which were insuring $4.6 billion of Greensill's working capital, announced they would stop providing the coverage after discovering that an employee at one of its subsidiaries had provided coverage that exceeded its risk limits. Greensill fought unsuccessfully to extend that coverage, and the company filed for insolvency protection in March 2021.
The fallout has been sprawling and multi-jurisdictional ever since. As Insurance Business Australia has documented, the claims across the eleven so-called "Greensill Proceedings" — which also target Insurance Australia Group, Bond & Credit Co, and Tokio Marine — seek over A$7 billion in damages and compensation related to insurance policies that allegedly failed to respond when Greensill's business collapsed.
Marsh, which placed the insurance, has also been in the crosshairs. The broker has been accused in several of those cases of misrepresenting the existence or validity of insurance coverage, and of failing to properly disclose key developments as Greensill's business unravelled. The firm previously settled a separate $143 million London lawsuit brought by White Oak over the same matter.
For Australian insurance brokers watching from the sidelines, this ruling carries a number of practical lessons.
First, privilege claims require precision. The court's rejection of broadly worded, non-specific privilege affidavits is a reminder — relevant to any broker managing complex claims or providing evidence in litigation — that general assertions of confidentiality will not hold up without document-by-document substantiation.
Second, regulator communications are not private by default. The order compelling disclosure of Tokio Marine's APRA correspondence underscores that notifications of breach submitted to regulators can find their way into court proceedings. Brokers who assist clients in managing regulator notifications should be mindful that such documents may be discoverable.
Third, and most broadly, the Greensill litigation illustrates how quickly questions of policy validity, broker disclosure obligations and underwriting authority can compound into catastrophic multi-party litigation. Marsh emphasised after Greensill's collapse that its role as a broker did not extend to being an insurer, banker, or credit analyst — and that insurers made their own determinations regarding the risks to be covered. Courts, however, are still unpicking those boundaries five years later.
A five-month trial has been set to begin in August 2026, covering multiple overlapping insurance and broker-related claims from Credit Suisse, White Oak and others. The industry would do well to keep watching.
For ongoing coverage of the Greensill proceedings, see Insurance Business Australia's legal insights section.
