An Australian court has ordered hundreds of settlement documents released in the eleven-proceeding insurance dispute tied to the collapse of Greensill Capital.
The ruling, handed down on April 28, 2026, by Justice Moshinsky of the Federal Court of Australia, stems from an interlocutory application filed on February 11, 2026, by White Oak Commercial Finance Europe (Non-Levered) Limited. 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 broader litigation involves eleven related proceedings being case managed together in the Federal Court. Among the parties are White Oak, Insurance Australia Limited, the BCC/TM Parties, Greensill Bank AG, Credit Suisse entities, Greensill Capital (UK) Limited, and Marsh. At the center of the dispute is the validity of certain policies of insurance and related claims following the Greensill group's collapse.
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 unpersuaded. The affidavit evidence supporting the privilege claims, the Court found, was "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 declined to inspect the disputed documents, noting the BCC/TM Parties had been on notice of the deficiencies and had the opportunity to address them.
The Court did uphold privilege over a narrow fourth category of documents relating to a specific claim referred to as the NMC Dispute. There, a partner at Kennedys (United Kingdom) Partnership gave direct evidence that he was personally involved in the settlement negotiations and had reviewed each document. After inspecting those documents, the Court confirmed they were exchanged as part of genuine settlement discussions. The Court also rejected waiver arguments, finding that one party to a negotiation cannot ordinarily waive the shared privilege through unilateral action.
Separately, the Court ordered the BCC/TM Parties to produce communications with the Australian Prudential Regulation Authority regarding a Notification of Breach by a General Insurer to APRA on or around July 30, 2020. The Court found reasonable grounds to be fairly certain that relevant documents existed but had not been discovered.
