FEDERAL COURT OF AUSTRALIA

Credit Suisse Virtuoso SICAV-SIF v Insurance Australia Limited (Privilege Hearing) [2026] FCA 1051

ORDERS

THE COURT NOTES THAT:

A.    By Orders dated 30 March 2023, 26 July 2023 and 27 May 2025, the following eleven proceedings (together, the Proceedings) are being case managed together:

a.    White Oak Commercial Finance Europe (Non-Levered) Limited v Insurance Australia Limited (NSD 1039 of 2021) (White Oak Matter);

b.    Credit Suisse Virtuoso SICAV-SIF in respect of the sub-fund – Credit Suisse (Lux) Supply Chain Finance Fund v Insurance Australia Limited (NSD 106 of 2022) (Catfoss Matter);

c.    Credit Suisse Virtuoso SICAV-SIF in respect of the sub-fund – Credit Suisse (Lux) Supply Chain Finance Fund v Insurance Australia Limited (NSD 110 of 2022) (NMC Matter);

d.    Credit Suisse Virtuoso SICAV-SIF in respect of the sub-fund – Credit Suisse (Lux) Supply Chain Finance Fund v Insurance Australia Limited (NSD 169 of 2023) (Credit Suisse Global Matter);

(the preceding three matters together being the CS Matters);

e.    Greensill Bank AG v Insurance Australia Limited (NSD 1216 of 2021) (EHG Matter);

f.    Greensill Bank AG v Insurance Australia Limited (NSD 173 of 2023) (Atlantic 57 Matter);

g.    Greensill Bank AG v Insurance Australia Limited (NSD 174 of 2023) (Bluestone Matter);

h.    Greensill Bank AG v Insurance Australia Limited (NSD 175 of 2023) (Liberty Commodities Matter);

i.    Greensill Bank AG v Insurance Australia Limited (NSD 177 of 2023) (SIMEC Matter);

j.    Greensill Bank AG v Insurance Australia Limited (NSD 602 of 2023) (Liberty Delta Matter);

k.    Greensill Bank AG v Marsh Limited (NSD 344 of 2025) (APF Matter),

(the preceding seven matters together being the GBAG Matters).

B.    The parties to the Proceedings are as follows:

a.    the Applicants:

i.    Credit Suisse Virtuoso SICAV-SIF in respect of the sub-fund Credit Suisse (Lux) Supply Chain Finance Fund (CS Virtuoso) and Credit Suisse Nova (Lux) in respect of the sub-fund Credit Suisse Nova (Lux) Supply Chain Finance High Income Fund (CS Nova) (together, Credit Suisse); and

ii.    White Oak Commercial Finance Europe (Non-Levered) Limited (White Oak); and

b.    the Respondents:

i.    Insurance Australia Limited (IAL);

ii.    BCC Trade Credit Pty Ltd (BCC), Tokio Marine & Nichido Fire Insurance Co Ltd (TMNF) and Tokio Marine Management (Australasia) Pty Ltd (TMMA) (together, the BCC/TM Parties);

iii.    Greg Brereton; and

iv.    Marsh Limited and Marsh Pty Ltd (together, the Marsh Parties); and

c.    in the White Oak matter, Greensill Bank AG (in administration) (GBAG) and Dr Michael Frege (as Insolvency Administrator for Greensill Bank AG) (together, GBAG Parties);

d.    the UBS Cross-Respondents:

i.    UBS Asset Management (Europe) S.A.(UBSAM);

ii.    UBS Asset Management Switzerland AG (UBSAME); and

iii.    UBS Fund Administration Services Luxembourg SA (UBSFASL);

e.    the Inactive Greensill Parties:

i.    Greensill Capital (UK) Limited (in administration) (GCUK); and

ii.    Greensill Capital Pty Limited (in liquidation) (GCPL).

THE COURT ORDERS THAT:

Application A – BCC / TM Parties application against White Oak

1.    By 4.00 pm on 4 August 2026, White Oak produce for inspection by the BCC/TM Parties copies of the documents identified at Annexure A, with any material that White Oak contends is permitted to be redacted (other than for privilege) pursuant to clause 3.2 of the Electronic Exchange Protocol, being Annexure A of the Orders of Lee J dated 21 December 2023, to be transparently highlighted.

2.    White Oak pay the BCC / TM Parties’ costs of this Application.

Application B – Marsh application for production of unredacted copies of the Deloitte Reports

3.    Marsh’s interlocutory application dated 15 May 2026 (Marsh Application) be dismissed.

4.    Credit Suisse and the UBS Cross-Respondents pay Marsh’s costs of the Marsh Application up to and including 6 July 2026.

5.    Marsh pay Credit Suisse / UBS Cross-Respondents’ costs of the Marsh Application from 7 July 2026.

Application C – IAL Application for production of unredacted communications between Credit Suisse and GCUK

6.    IAL’s amended interlocutory application dated 30 June 2026 (IAL Application) be dismissed.

7.    Credit Suisse and the UBS Cross-Respondents pay IAL’s costs of the IAL Application up to and including 13 July 2026.

8.    IAL pay Credit Suisse / the UBS Cross-Respondents’ costs of the IAL Application from 14 July 2026.

Application D – Marsh / Credit Suisse cross applications for further and better discovery

(Marsh / Credit Suisse)

9.    Pursuant to s 54A(3)(a) of the Federal Court of Australia Act 1976 (Cth) (the FCA), the referee report of Mr Edward Cowpe dated 24 July 2026 is adopted.

10.    Pursuant to Order 6 made on 30 October 2023 requiring Credit Suisse to provide standard discovery pursuant to r 20.14 of the Federal Court Rules 2011 (Cth) (the FCR), and Order 39 made on 24 July 2025 (as amended by Order 41 on 4 November 2025) requiring the UBS Cross-Respondents to provide standard discovery pursuant to FCR 20.14, Credit Suisse and the UBS Cross Respondents:

(a)    are to conduct the “Investigations Search” as defined in Annexure C to these orders over the mailbox repositories of the following custodians for the following date ranges:

(i)    Andreas Asche from 22 September 2021 to 28 February 2023;

(ii)    Nina Egelhof from 1 January 2020 to 28 February 2023;

(iii)    Christian Mossdorf from 1 January 2020 to 28 February 2023;

(iv)    Guy Reiter from 1 January 2020 to 28 February 2023;

(v)    Ruzica Stowe from 1 January 2020 to 28 February 2023;

(vi)    Eric Varvel from 1 January 2020 to 20 December 2021;

(vii)    Thomas Gottstein from 1 January 2016 to 1 August 2022;

(viii)    Toni Patti from 1 January 2020 to 28 February 2023; and

(b)    following the conducting of the search described in (a), forthwith, and by no later than 14 August 2026, are to provide standard discovery of documents responsive to that search which are directly relevant for the purposes of FCR 20.14.

Application E – Credit Suisse application for production of unredacted documents by the

BCC/TM Parties (BCC/TM Parties/Credit Suisse Reference)

11.    Pursuant to s 54A(3) of the FCA and FCR 28.67:

(a)    The Report of Mr Cowpe dated 24 July 2026 in relation to the BCC/TM Parties/Credit Suisse Discovery Question (the BCC/TM Parties/Credit Suisse Report) be adopted with the exception of paragraphs 35 to 54, which paragraphs are not adopted;

(b)    By 12:00pm on 30 July 2026, the BCC/TM Parties produce to the Referee appointed pursuant to Order 3 of the Orders made by Justice Lee on 16 July 2026 (the Referral Orders), the attachments to Document 1 as referred to in the BCC/TM Parties/Credit Suisse Report;

(c)    By 12:00pm on 2 August 2026, the Referee produce a supplementary report (the BCC/TM Parties/Credit Suisse Supplementary Report) in relation to the BCC/TM Parties/Credit Suisse Discovery Question addressing the questions in Annexure B of the Referral Orders in relation to Document 1;

(d)    The Supplementary BCC/TM Parties/Credit Suisse Discovery Report be produced to the Court addressed to the Associate to Justice Lee, in accordance with FCR 28.66;

(e)    The parties raise any objection to the prospective adoption of the BCC/TM Parties/Credit Suisse Supplementary Report by 4:00pm on 3 August 2026;

(f)    Any application to adopt the BCC/TM Parties/Credit Suisse Supplementary Report be made before Justice Lee on 4:00pm on 5 August 2026.

12.    By 5:00pm on 30 July 2026, the BCC/TM Parties produce Documents 5 and 6 as referred to in the BCC/TM Parties/Credit Suisse Report without claim or redaction for privilege.

13.    The BCC/TM Parties’ solicitors pay the costs, including Credit Suisse / the UBS Cross-Respondents’ costs and the Referee’s costs, of the Supplementary Reference.

Application F – Credit Suisse application for production of further unredacted documents

by the BCC/TM Parties

14.    By 5:00pm on 30 July 2026, the BCC TM Parties produce:

(a)    the documents referred to in the email from Kennedys to Gilbert + Tobin sent 24 July 2026 at 4:26pm; and

(b)    the documents referred to in the email from Kennedys to Gilbert + Tobin sent 26 July 2026 at 10:57am.

15.    By 5:00pm on 30 July 2026, the BCC/TM Parties file and serve any evidence they intend to rely upon in support of their claims for privilege over the documents listed in Annexure A to these orders.

16.    By 5:00pm on 3 August 2026, Credit Suisse file and serve any evidence in response to the evidence referred to in Order 15 above.

17.    Pursuant to s 37P(2) and s 54A of the FCA and FCR 28:

(a)    the question set out in Annexure B to these Orders (BCC/TM Parties/Credit Suisse Further Discovery Question) be referred to the Referee for the purposes of the Referee conducting an inquiry into the BCC/TM Parties/Credit Suisse Further Discovery Question (BCC/TM Parties/Credit Suisse Further Reference) and providing a report in writing to the Court on the BCC/TM Parties/Credit Suisse Discovery Question referred to the Referee stating, with reasons, the Referee’s opinion on the BCC/TM Parties/Credit Suisse Further Discovery Question (BCC/TM Parties/Credit Suisse Further Report);

(b)    the BCC/TM Parties/Credit Suisse Further Reference commence upon the making of these Orders or on such other date as notified in writing by the Referee;

(c)    the Referee consider and implement such manner of conducting the BCC/TM Parties/Credit Suisse Further Reference as will, without undue formality or delay, enable a just, efficient, timely and cost-effective resolution of the Reference to allow completion of the BCC/TM Parties/Credit Suisse Further Report including, if the Referee thinks fit:

(i)    the making of enquiries electronically, by telephone or in writing;

(ii)    direct communication without intervention of lawyers of any expert retained on behalf of a party and/or any person whom the Referee believes may have information relevant to the BCC/TM Parties/Credit Suisse Further Reference;

(iii)    in order to facilitate the Referee implementing the just, efficient, timely and cost-effective resolution of the BCC/TM Parties/Credit Suisse Further Reference, the Referee is to make such directions as the Referee considers appropriate as to the conduct of the Reference;

(iv)    without limiting (i), (ii) and (iii), to the extent the Referee considers it is necessary or appropriate for the Referee to obtain any submission from any party, the Referee may make any direction the Referee considers appropriate in relation to such submissions including that any submissions be provided wholly in writing and be limited in length and topic;

(v)    without limiting (i), (ii) and (iii), to the extent the Referee considers it is necessary or appropriate, the attendance of any person and the production of documents be compelled by subpoena; and

(vi)    the laws of evidence will not apply in relation to the BCC/TM Parties/Credit Suisse Further Reference.

18.    By no later than 7 August 2026, Credit Suisse and the UBS Cross-Respondents and BCC/TM Parties provide to the Referee a brief statement of contentions as required by FCR 28.65(7).

Referee’s Report

19.    By 12 August 2026, the Referee submit the BCC/TM Parties/Credit Suisse Further Report to the Court, addressed to the Associate to Justice Lee, in accordance with FCR 28.66.

20.    In the BCC/TM Parties/Credit Suisse Further Report, the Referee:

(a)    make, to the extent it was necessary for the Referee to make any findings of fact in order to express the Referee’s opinion on the BCC/TM Parties/Credit Suisse Further Discovery Question, a statement of the facts found by the Referee from which the Court may draw such inferences as it thinks fit; and

(b)    may submit any question arising on the BCC/TM Parties/Credit Suisse Further Reference for the decision of the Court and provide alternative opinions on the BCC/TM Parties/Credit Suisse Further Discovery Question which depend upon how the Court determines any question submitted to the Court.

21.    The Referee and the parties have liberty to seek directions with respect to any matter arising in the BCC/TM Parties/Credit Suisse Further Reference upon application made on 24 hours’ notice or such other notice ordered by the Court.

22.    Without affecting the powers of the Court as to costs, Credit Suisse and the UBS Cross-Respondents as one group, and the BCC/TM Parties as another, in the first instance, to be jointly and severally liable in equal, 50/50 shares to the Referee for the fees payable to the BCC/TM Parties/Credit Suisse Further Discovery Reference.

23.    The parties raise any objection to the prospective adoption of the BCC/TM Parties/Credit Suisse Further Report by 14 August 2026.

24.    Any application to adopt the BCC/TM Parties/Credit Suisse Further Report be made at the interlocutory hearing listed on a date to be advised.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Annexure A

TMA.0001.0027.0146, and its attachment TMA.0001.0027.0147

TMA.0001.0011.5327

TMA.0001.0011.8157, and its attachment TMA.0001.0011.8158

TMA.0001.0011.9917, and its attachment TMA.0001.0011.9918

TMA.0001.0011.4926, and its attachment TMA.0001.0011.4927

TMA.0001.0012.2496

TMA.0001.0012.8877 and its attachment TMA.0001.0012.8878

BCC.0001.0012.1162 and its attachment BCC.0001.0012.1163

TMA.0001.0011.5999, and its attachments TMA.0001.0011.6000 and TMA.0001.0011.6001

TMA.0001.0011.8640, and its attachment TMA.0001.0011.8641

BCC.0001.0012.0069

BCC.0001.0012.0466

BCC.0001.0012.1449

TMA.0001.0011.9102

TMA.0001.0012.4787

TMA.0001.0012.0130

TMA.0001.0012.0766

BCC.0001.0012.0498

TMA.0001.0011.0512

BCC.0001.0012.0076

Annexure B

Whether as part of their discovery obligations pursuant to FCR 20.14, the BCC/TM Parties ought to have produced, without claims or redactions for legal professional privilege, the documents listed in Annexure A, such that they should produce such documents and other documents of which that document is a representative sample pursuant to FCR 20.14.

Annexure C

Investigations Search means:

("Greensill" OR "GCUK" OR "Gupta" OR "GFG") AND ("Project Lime" OR "Project Olive" OR "Cahill" OR "McKinsey" OR "Deloitte" OR "Linklaters" OR "Morgan Lewis" OR "Walder Wyss" OR "Wenger Plattner" OR "Mazars" OR "Enquire" OR "Ernst & Young" OR "EY" OR "Diligence" OR "PJ Legal" OR "Paul Johnson" OR "Internal Deep Div*" OR "IROC Deep Div*" OR "Swiss Financial Market Supervisory Authority" OR "Swiss Financial Market Supervisory Authority" OR "FINMA" OR "Commission de Surveillance du Secteur Financier" OR "CSSF")

REASONS FOR JUDGMENT

(Delivered ex tempore, revised from the transcript)

LEE J:

A    INTRODUCTION AND PROCEDURAL BACKGROUND

1    These reasons determine, on an expedited basis, several outstanding interlocutory applications arising in proceedings which form part of the vast Greensill-related matters presently being case managed together and which will be heard, commencing on 14 September 2026, by Thawley J.

2    Although the applications have been brought by different parties and in different proceedings, they raise overlapping questions concerning legal professional privilege, waiver, production of documents and the scope of discovery. It is both convenient and desirable that they be determined together in a single judgment.

3    Tender lists are to be finalised by 21 August 2026, and the applications came before me for urgent determination. It is necessary that the parties obtain rulings upon the outstanding questions of production and inspection well before the commencement of the trial. Having regard to the demands upon my docket and Full Court commitments in the immediate future, the only realistic alternatives were either to reserve my decision for a period which would have frustrated the objective of speedy determination or to deliver reasons ex tempore. In the circumstances, I considered the latter course to be preferable.

4    That course has not involved any want of opportunity to consider the issues. To the contrary, I have had the benefit of extensive written submissions of a very high standard, detailed authorities, comprehensive court books and, in several instances, helpful aide-mémoires and agreed materials. The written submissions provided the principal foundation for the disposition of the applications. They were supplemented by careful oral submissions over three hearings, during which the issues were substantially refined, and the parties were afforded the opportunity to address questions which concerned me. I have also personally inspected the documents which the parties invited me to inspect.

5    It is, of course, possible that reasons reserved over a longer period might exhibit a greater degree of literary polish. But I am satisfied that the opportunity to reflect upon the issues between hearings has enabled me to give proper consideration to the parties’ competing contentions.

6    What is immediately evident is that these proceedings have generated extensive activity concerning production of documents over a lengthy period since I initially made standard discovery orders pursuant to rule 20.14 of the Federal Court Rules 2011 (Cth) (FCR) when the Greensill matters were in my docket. The present applications represent a further stage in the resolution of interlocutory disputes concerning document production and they require prompt resolution to ensure that the forthcoming trial proceeds with the benefit of all controversies concerning document production being resolved. This should be the end of such disputation.

7    It is also worth noting that the applications have not all followed the same procedural course. Some were stood over to today, part heard. Others first came before the Court on 16 July 2026 or today. During the course of oral argument, several issues originally raised by the parties were refined or significantly narrowed. Following the earlier hearing, certain questions concerning privilege and the adequacy of discovery searches were referred to a referee, Mr Edward Cowpe, for inquiry and report pursuant to s 54A of the Federal Court of Australia Act 1976 (Cth) (FCA Act).

8    Using the taxonomy of the parties, I will use the standard abbreviations for the parties and the applications identified in the parties’ agenda document (which was provided to the Court today). The applications may conveniently be described as follows.

A.1    Application A: White Oak privilege application

9    Application A arises in the White Oak proceeding (NSD 1039 of 2021). It concerns an application by the BCC/TM Parties seeking production of documents over which White Oak maintains claims for legal professional privilege. This application comes before the Court for determination for the first time today.

A.2    Application B: Marsh application concerning the Deloitte Reports

10    Application B arises in the Credit Suisse Global Matter (NSD 169 of 2023). Marsh seeks production of unredacted copies of the Deloitte Reports. Although Credit Suisse no longer maintains privilege over the reports as a whole, it continues to maintain claims for legal professional privilege in respect of several redactions. Those claims substantially overlap with the privilege claims advanced in response to the IAL application discussed below, because many of the redactions are said to disclose or reveal the substance of privileged legal advice. This application was argued previously, stood over part heard and was the subject of supplementary submissions directed principally to the issues of waiver and confidentiality.

A.3    Application C: IAL privilege application

11    Application C also arises in the Credit Suisse Global Matter (NSD 169 of 2023). IAL seeks production of communications between Credit Suisse and Greensill Capital (UK) Limited over which Credit Suisse maintains claims for legal professional privilege. The documents fall into three categories: (a) communications associated with Linklaters’ 2016 retainer; (b) communications associated with Linklaters’ 2018 retainer; and (c) communications associated with Morgan Lewis’ 2020 retainer.

12    During oral argument, the issues narrowed considerably. Although questions concerning the existence of privilege remain in relation to some categories of documents, IAL’s principal challenge in relation to the Morgan Lewis documents ultimately focussed upon waiver. This application was also argued previously and stood over part heard.

A.4    Application D: Marsh/Credit Suisse discovery applications

13    Application D arises in the Credit Suisse Global Matter (NSD 169 of 2023). It concerns competing applications by Marsh and Credit Suisse relating to the adequacy of discovery, including whether reasonable searches have been undertaken and whether further searches should be ordered to ensure proper compliance with the discovery obligations required by FCR 20.14. As noted above, by orders made on 16 July 2026, questions arising in respect of those disputes were referred to Mr Cowpe as referee, and the dispute has largely been determined upon adoption of that report.

A.5    Application E: Credit Suisse application re production by the BCC/TM Parties

14    Application E also arises in the Credit Suisse Global Matter (NSD 169 of 2023). Credit Suisse seeks production of documents from the BCC/TM Parties which have been withheld or redacted on claims of legal professional privilege. Aspects of that dispute were also referred to Mr Cowpe who has furnished a report and a dispute arose concerning adoption of the whole of that report.

A.6    Application F: Credit Suisse application for further production

15    Application F also arises in the Credit Suisse Global Matter (NSD 169 of 2023). It concerns a further application by Credit Suisse for production of documents from the BCC/TM Parties. Although discrete in the relief sought, it overlaps factually and legally with Applications D and E.

A.7    Observation as to Commonality of Issues

16    Although the applications are distinct, as can be seen, they are interconnected and some arose from the same factual matrix and, in part, have been the subject of inquiry and report by a referee. Separate judgments would necessarily involve substantial repetition of both the factual background and the applicable legal principles. It is therefore convenient to determine all applications in a single set of reasons, while addressing each application separately under the headings which follow.

B     RELEVANT LEGAL PRINCIPLES

17    Save in limited respects, there was little dispute between the parties as to the applicable legal principles. That is hardly surprising given that the applications concern legal professional privilege, waiver and related questions, which have been the subject of repeated consideration at intermediate appellate and High Court level. The present controversy lies in the application of principle to the particular facts and circumstances presently before the Court.

18    The parties’ written submissions contain a very extensive review of the authorities, accompanied by numerous (indeed oppressive) references to the decided cases. Indeed, a veritable tsunami of cases was provided. While the submissions were of very considerable assistance, it is surplusage for me to rehearse the cases or burden these reasons with unnecessary reference to, or citations of, authority. The controlling principles are well settled and, for present purposes, sufficiently clear. It is only necessary to identify the principal propositions which provide the framework for the disposition of the applications.

B.1     Legal professional privilege

19    Legal professional privilege protects confidential communications made for the dominant purpose of obtaining or giving legal advice or for use in existing or anticipated litigation. The privilege exists to facilitate the administration of justice by encouraging full and frank communication between lawyer and client in circumstances of confidence. The privilege protects not only the legal advice itself, but communications which form part of the continuum of communications directed towards obtaining or giving that advice. 

20    The party asserting privilege bears the onus of establishing the facts necessary to sustain the claim. Whether that burden has been discharged depends upon the whole of the evidence, including, where appropriate, the nature and contents of the communications themselves. The purpose for which a document was brought into existence is determined objectively, having regard to all the surrounding circumstances. Although evidence from those directly involved in the communications will often be desirable, whether the requisite dominant purpose has been established depends upon the circumstances of the case and the evidence as a whole. 

21    Communications with persons other than the lawyer or client do not necessarily fall outside the scope of legal professional privilege. Whether such communications are themselves privileged depends upon the purpose for which they were brought into existence and the role they play in the process of obtaining or giving legal advice. Equally, where a communication reproduces or necessarily reveals the substance of privileged legal advice, the communication itself may attract privilege notwithstanding that it was not created by the legal adviser. 

B.2    Waiver

22    The governing inquiry for waiver is well established and is not determined by reference to subjective intention but by considering whether the conduct of the privilege holder is objectively inconsistent with the maintenance of the confidentiality which the privilege exists to protect. The question is one of inconsistency, to be assessed in the circumstances of the particular case. 

23    The authorities make plain that disclosure of privileged material to another person does not inevitably result in waiver. Whether waiver has occurred depends upon the character of the disclosure, the purpose for which it was made and the circumstances in which it occurred. The inquiry is necessarily evaluative and fact-sensitive. 

B.3     Confidentiality and disclosure to third parties

24    Although the general principles concerning waiver were not materially disputed, considerably more attention was devoted during oral argument to the circumstances in which disclosure of privileged communications to third parties remains consistent with the maintenance of confidentiality. 

25    The mere fact that a communication has passed beyond the immediate solicitor-client relationship does not, of itself, answer the question whether privilege has been waived. Rather, it remains necessary to determine whether the conduct relied upon is properly characterised as inconsistent with the continued maintenance of confidentiality. 

26    Confidentiality may arise in a variety of ways. It may be imposed by legal or equitable obligation. It may, of course, arise by necessary implication from the circumstances in which the communication occurs. Whether an implied obligation of confidence exists is an objective inquiry, requiring consideration of the relationship between the parties, the purpose for which the communication was made, the nature of the information communicated and the circumstances in which it was disclosed. 

27    In determining whether disclosure is inconsistent with the maintenance of confidentiality, it is necessary to have regard to the whole of the surrounding circumstances. Relevant considerations may include the function performed by the recipient, the purpose for which the communication was made, whether the recipient required access to the information in order to perform that function, whether the communication was confined to that purpose, the extent to which any onward dissemination was authorised or contemplated, and whether the recipient was objectively subject to an obligation, express or implied, to preserve the confidentiality of the communication. No one consideration is determinative. 

28    Conversely, the fact that the recipient of a communication may be permitted to use information for a limited purpose does not necessarily mean that confidentiality has been abandoned; nor does the existence of statutory powers permitting disclosure in particular circumstances inevitably establish that the privilege holder has acted inconsistently with maintaining confidentiality. The inquiry remains whether, viewed objectively, the conduct of the privilege holder demonstrates a relevant inconsistency with the maintenance of the confidentiality which legal professional privilege protects. 

29    These principles assume particular significance in the present applications because a number of the disputed communications were made to persons other than solicitors or their clients. Whether those communications remained confidential, notwithstanding their disclosure to third parties, lies at the heart of several of the applications. 

B.4     Inspection

30    The parties also referred to numerous authorities concerning the circumstances in which a court should inspect documents over which legal professional privilege is claimed. Different emphases emerge from those authorities. It is unnecessary to resolve those questions for present purposes. 

31    In each of the applications now before the Court, the parties ultimately invited me to inspect the disputed documents (or at least acquiesced in that course). No party suggested that inspection would occasion procedural unfairness or forensic embarrassment. Nor does inspection give rise to any practical difficulty in the present case. I have therefore inspected the disputed documents, together with such surrounding communications as are necessary to place them in their proper context. 

32    It is against these uncontroversial principles that the several interlocutory applications fall to be determined.

C     APPLICATION A – WHITE OAK PRIVILEGE APPLICATION

C.1     The application

33    As noted above, Application A concerns the application by the BCC/TM Parties seeking production of documents over which White Oak maintains claims for legal professional privilege. The documents in dispute are identified in White Oak’s privilege schedule. The issues requiring determination are whether White Oak has established its claims for legal professional privilege and, if so, whether the documents should nevertheless be produced. 

C.2     The submissions

34    The BCC/TM Parties were represented by Mr Williams SC and Mr Beshara. White Oak was represented by Mr O’Brien and Ms Lambourne. 

35    Mr Williams submitted that White Oak had failed to discharge the onus of establishing legal professional privilege in respect of the disputed documents. The application concerned 48 documents comprising “Sterling Diligence background check reports” and related communications. He submitted that the reports were commissioned as part of White Oak’s commercial due diligence undertaken in connexion with the proposed Greensill transactions and that the reports, together with many of the subsequent communications, were brought into existence for commercial purposes rather than for the dominant purpose of obtaining or giving legal advice. It was further submitted that the affidavit evidence relied upon by White Oak was expressed at a high level of generality and failed to establish, document by document, the legal purpose for which the communications were created. 

36    White Oak accepted that the Court’s task ultimately required consideration of the documents themselves, but submitted that the BCC/TM Parties’ characterisation of the documents ignored the way in which the Sterling reports were actually used within White Oak. It was submitted that the reports were commissioned so that Mr Joe Breslin, an in-house lawyer, could evaluate the legal significance of matters disclosed by those reports and advise those responsible for making commercial decisions. It was said the commercial teams did not receive the reports themselves but instead received Mr Breslin’s legal advice informed by his review of those reports. Accordingly, the reports and the communications which followed formed part of the continuum of communications undertaken for the dominant purpose of obtaining and giving legal advice. 

37    As the argument developed, White Oak organised the disputed documents into three categories, submitting that each category illustrated a different aspect of the privilege claims and demonstrated why the BCC/TM Parties’ challenge should fail. The dispute was further narrowed today by identifying two documents said to reflect the “high-water” mark of the claim, but first it is worth saying something about the three categories identified.

38    The first category concerned a chain of communications exchanged on 29 April 2020 between Mr Breslin, Mr Tom Otte and Mr Jacob Schapiro. White Oak submitted that these communications demonstrated the paradigm case of communications undertaken for the purpose of obtaining legal advice. Mr Breslin had reviewed the Sterling background check report and was requested to provide his legal assessment of matters arising from it. Importantly, the commercial personnel participating in the email chain had not themselves received the underlying Sterling report before Mr Breslin’s advice was sought. The culmination of the communications was Mr Breslin’s advice identifying the legal significance of the matters disclosed by the report before White Oak entered into the relevant transaction later that day. 

39    The BCC/TM Parties submitted that the communications demonstrated the commercial function performed by the Sterling reports. The reports, it was contended, informed White Oak’s commercial assessment of the proposed transaction and that the participation of commercial decision-makers throughout the email chain supported the inference that the dominant purpose of the communications remained commercial rather than legal. 

40    The second category comprised communications exchanged on 3 and 4 June 2020 between Ms Barbara McKee, White Oak’s Head of Legal, and Mr Breslin. White Oak submitted that these communications arose because Ms McKee required Mr Breslin’s earlier legal advice, together with the underlying report, in order to brief the Investment Committee. It was submitted that these communications did not represent a fresh commercial use of the Sterling report but rather the internal dissemination of legal advice within White Oak’s legal and governance framework. The fact that the underlying report accompanied the legal advice did not alter its privileged character because the report was being communicated to explain and support the legal advice previously provided. 

41    The BCC/TM Parties submitted that the contrary inference should be drawn. The forwarding of the report to the Investment Committee, it was asserted, demonstrated that the report itself was being used by those charged with making commercial investment decisions. The communications, it was said, were therefore difficult to reconcile with White Oak’s contention that the dominant purpose of the reports was to facilitate legal advice. 

42    The third category concerned communications exchanged between late January and early February 2021 involving Mr Breslin, Mr Schapiro and members of the White Oak Commercial Finance LLC team. White Oak submitted that these communications arose because WOCF was considering participation in the relevant Greensill programme and sought access to legal work already undertaken within the White Oak group. It was submitted that it was not unusual for one entity within the corporate group to utilise legal work previously undertaken for another entity and that the communications reflected precisely that process. The reports were provided because they formed part of the legal work already undertaken by Mr Breslin in connexion with substantially the same subject matter. Their later use in that context did not alter the dominant purpose for which they had originally been commissioned or the communications in which they had previously been deployed. 

43    The BCC/TM Parties submitted that these later communications demonstrated the continuing commercial utility of the Sterling reports. The reports, it was said, had become documents used to facilitate commercial investment decisions by another entity within the White Oak group. That subsequent use reinforced the conclusion that the reports possessed a substantial and independent commercial purpose. 

44    Although the parties approached the documents from markedly different perspectives, both accepted that the issues could conveniently be determined by reference to the documents themselves and the surrounding communications necessary to place them in their proper context. Both parties invited the Court to inspect those materials. Having done so today, I turn to my consideration of the competing contentions.

C.3     Consideration

45    As I recently explained in Medibank Private Limited v McClure [2026] FCAFC 38 at [22] (Wigney and Hespe JJ agreeing), the expression dominant purpose is used to denote the “ruling, prevailing or most influential purpose”, and three relevant consequences follow from that formulation: first, the existence of more than one purpose does not, without more, defeat privilege (reflecting the reality that documents in a commercial setting are often created in circumstances where more than one consideration is operating); secondly, the mere existence of a legal purpose is insufficient as the legal purpose must predominate; and thirdly, the inquiry is objective and, while relevant, it is not enough that a party or its officers honestly say, or even honestly believe, that the legal purpose was dominant.

46    I do not regard the present application as anything like a close-run thing. White Oak bears the onus of establishing, on the balance of probabilities and having regard to the considerations identified in s 140(2) of the Evidence Act 1995 (Cth), the facts necessary to sustain its claims. Having considered the affidavit evidence, the contemporaneous documents and the representative communications which the parties invited me to inspect, I am far from satisfied that it has done so. Indeed, if it were necessary positively to identify the dominant purpose objectively disclosed by the evidence, I would conclude that the Sterling reports were obtained and used as part of an enhanced corporate due diligence process directed to informing commercial decisions concerning prospective transactions. The involvement of White Oak’s legal personnel formed part of that process, but the evidence falls well short of establishing that obtaining or giving legal advice was its prevailing or most influential purpose. 

47    It is first necessary to deal in some detail with the affidavit evidence because, viewed superficially and in isolation, it presents an apparently coherent account of a carefully designed and long-established structure under which the Sterling reports were quarantined from commercial personnel and obtained for the purpose of legal advice. 

48    Ms Rani Sara John is a partner of Ashurst and has the day-to-day conduct of the proceeding for White Oak. Her principal affidavit was sworn on 3 July 2026. The relevant evidence concerning White Oak’s structure and practices was given by her upon information and belief derived principally from Ms Barbara McKee, Mr Joe Breslin and Mr Jacob Schapiro. A short supplementary affidavit sworn on 20 July 2026 sought to clarify the description of the function performed by Mr Breslin. 

49    The structure portrayed by that evidence was as follows. White Oak Global Advisors LLC (WOGA) was an asset manager which made loans either directly or through financing affiliates. The applicant, White Oak, was a special purpose vehicle without employees. Its related operating entities included White Oak Commercial Finance LLC and White Oak ABL LLC. The proposed transactions were considered by commercial personnel comprising the relevant “Deal Team” and ultimately, where appropriate, by WOGA’s Investment Committee. 

50    Ms McKee was a co-founder and managing partner of WOGA and its Head of Legal. She was also a non-voting member of the Investment Committee and attended its meetings in case legal questions arose. The WOGA legal team included a General Counsel and Mr Breslin. At the relevant time, Mr Breslin was described as in-house “Senior Counsel” reporting directly to the General Counsel. Ms John deposed, upon information from Mr Breslin, that his “only role” was to act as an in-house lawyer providing advice to WOGA and its related entities. 

51    The affidavit evidence then described a Background Check Committee, comprising Ms McKee, the General Counsel and Mr David Hackett, who was Co-President of WOGA and Chair of the Investment Committee. Sterling Diligence, formerly Bishops Services, had been engaged by WOGA under a standing engagement since at least 2014 to conduct background checks in relation to persons and entities considered relevant to proposed projects and transactions. 

52    According to Ms John’s account, the general process operated in this way. Members of the Deal Team identified the persons and entities to be investigated. They did so because they were familiar with the proposed transaction and with the parties involved. Members of the Deal Team then initiated the background-check process by supplying Sterling with the relevant names, contacting the prospective subjects of the investigation and obtaining the necessary consent documentation. Sterling performed its investigations and prepared its reports. 

53    The reports were then said to be provided not to the Deal Team, but directly to the General Counsel and Mr Breslin. Mr Breslin would review the reports and advise the Background Check Committee about matters arising from them, including any legal risks he identified. The Committee would not itself review the Sterling reports. Following its consideration of Mr Breslin’s advice, it would determine whether to give the proposed transaction a “green light”, require further investigation or escalate an issue to the Investment Committee. Mr Breslin would then communicate to the Deal Team the substance of his advice and the outcome, but not ordinarily provide the underlying reports. 

54    Paragraph 18(f) of the first John affidavit elaborated upon the asserted legal function. It stated that Mr Breslin’s advice included identifying legal risks arising from the reports and determining whether those risks required further investigation before the transaction proceeded. This was said to require legal knowledge and experience, including an understanding of the scope and consequences of litigation, civil or criminal allegations, regulatory investigations and findings against the subjects of reports. The paragraph also stated that a further reason for seeking the assessment of a lawyer was to ensure independence from a Deal Team which had an interest in the transaction proceeding. 

55    Paragraph 18(g) stated that the “green light” based upon Mr Breslin’s advice was one of numerous factors considered by the Investment Committee when deciding whether to proceed. It also recognised that, in practice, Mr Breslin would sometimes review the reports and email his conclusions directly to the Deal Team without any formal deliberation or decision by the Background Check Committee.

56    Paragraph 19 repeated the asserted sequence from Mr Breslin’s perspective. The Deal Team identified the persons to be investigated and initiated the process; Sterling sent its reports to Mr Breslin and the General Counsel; Mr Breslin reviewed them and advised the Committee; and he thereafter advised the Deal Team of the substance of his advice and the Committee’s conclusion. Paragraph 20 contained evidence from Mr Schapiro that the Deal Team ordinarily did not receive the reports, but did receive an email recording the outcome of Mr Breslin’s review, which would ordinarily be saved to the project file in Salesforce. 

57    The supplementary affidavit sought to put the matter more explicitly. It stated, upon information from Ms McKee, that the purpose of Mr Breslin’s advice to the Committee was to provide legal advice on the contents of the Sterling reports, including identifying any legal risks, and that where no legal risk was identified his advice would generally record the absence of such risks. 

58    That evidence has plainly been prepared with very close attention to the legal issue which the Court must determine. On its face, it portrays a deliberate segregation between commercial and legal functions: the Deal Team commissioned and facilitated the checks but did not see the resulting reports; the reports went to lawyers; a lawyer applied legal skill and judgment to their contents; a legal committee received the lawyer’s advice; and only a conclusion or “green light” was communicated back to commercial decision-makers. 

59    But closer analysis reveals significant limitations in the evidence. The language used repeatedly describes the conclusion which White Oak must establish rather than the underlying facts from which that conclusion can safely be drawn. Paragraph 14(d) states generally that the function of the WOGA legal team was to provide legal advice. Paragraph 15(c) states that Mr Breslin’s only role was to act as an in-house lawyer providing advice. Paragraphs 18(c), 18(d), 18(f), 19(d) and 19(e) characterise his review and communications as “advice” or “legal advice”. The supplementary affidavit makes the characterisation still more explicit. 

60    What the evidence notably does not do is descend to the detail of any identifiable legal question upon which Mr Breslin was requested to advise, either generally as part of the Sterling process or specifically in relation to the reports now in issue. It does not identify any instructions asking him to advise upon a particular legal right, obligation, exposure or issue arising from a proposed transaction. It does not explain how the subject matter of the Sterling investigation was selected by reference to a legal question. Nor does it identify any conventional process by which Sterling was briefed by a lawyer to obtain information considered necessary to enable the lawyer to answer such a question. 

61    A lawyer employed within a commercial organisation may be asked to exercise judgment about risk, probity, compliance or the commercial prudence of a transaction without necessarily providing legal advice. Describing a risk as a “legal risk”, or describing the person assessing it as a lawyer, does not determine the character of the function objectively performed. Nor does the fact that the assessment was intended to be independent of a commercially enthusiastic Deal Team convert the function into the provision of legal advice. 

62    The evidence at paragraphs 18 and 19 is also notable for what it says about the Deal Team. It was the Deal Team which identified the individuals and entities to be investigated. It initiated the background checks, supplied Sterling with the names, contacted the subjects, distributed the consent forms and facilitated the provision of information. It did so because its members possessed the commercial knowledge necessary to identify the persons relevant to the contemplated transaction. Those matters demonstrate that the Sterling investigation originated in, and was directed by, the commercial due diligence process undertaken by those considering whether the transaction should proceed.

63    It is against that carefully drafted affidavit evidence that the contemporaneous documents assume real importance. In my view, they substantially diminish its persuasive force. 

64    The first is the Master Letter of Engagement between Bishops Services, later Sterling Diligence, and WOGA dated 28 February 2014. The letter describes services involving research and the gathering of information. It contains nothing identifying a legal issue upon which WOGA’s lawyers required advice, nothing suggesting that Sterling was being retained by or on behalf of WOGA’s lawyers, and nothing indicating that its reports would be used principally to enable legal advice to be given. 

65    White Oak relied upon the fact that the letter was executed by a person who was then WOGA’s General Counsel. That circumstance is, at best, equivocal. A so-called “General Counsel” may execute a corporate services agreement for any number of reasons. The identity or office of the signatory does not transform the object of the engagement. What matters is that the operative terms disclose the retention of a corporate intelligence and due diligence provider to undertake information gathering services, not a conventional engagement of an expert or investigator by a lawyer to assist the lawyer to advise upon an identified legal issue. 

66    The absence of any conventional legal instruction is also notable. Sterling’s task was to undertake background checks upon the persons nominated by the Deal Team. 

67    The pro forma consent documents appearing at pages 39 and 47 of Exhibit NJJ-13 of the Affidavit of Nicholas James Josey dated 12 June 2026 do not alter that conclusion. White Oak placed reliance upon language referring to “legal Due Diligence purposes”. But the expression, in context, does not establish that WOGA was obtaining the information for the dominant purpose of securing legal advice. The documents were forms prepared for the subjects of the checks. Their evident function was to obtain consent and to assure Sterling that it was carrying out intrusive investigations for a lawful or legitimate due diligence purpose. 

68    Contrary to Mr O’Brien’s submission, I am satisfied “legal” in that setting does not identify legal advice as a subset of the due diligence process. It describes the legitimacy or lawful character of the purpose for which information was to be collected and used. It is entirely consistent with Sterling seeking to protect itself by ensuring that its searches were not being commissioned for an improper end (something its documents suggest was a matter of general corporate concern). Nothing in the forms tells the subject that the resulting report will be obtained by a lawyer to enable advice to be provided upon a legal question. 

69    The same conclusion is reinforced by the absence of any participation by WOGA’s legal personnel in defining the scope of the searches. If the reports were obtained predominantly to enable legal advice to be given, one might expect the lawyer responsible for the advice to identify, at least in broad terms, the legal risks upon which information was required. The reports were general background checks concerning matters such as criminal history, insolvency, litigation, regulatory matters and reputation. Such information was plainly capable of informing a commercial credit or investment decision independently of any legal advice.

70    Mr Breslin’s own position requires separate attention. The affidavit states, upon information from him, that his only role at the relevant time was to act as an in-house lawyer. That evidence might be technically accurate, but the wider material placed before the Court does not make his function in relation to the Sterling process so straightforward. 

71    The material at page 235 of the Court Book concerning Mr Breslin’s professional history discloses experience extending beyond the conventional provision of legal advice. It includes senior operational and compliance responsibilities, including roles described as Chief Operating Officer and, importantly, Chief Compliance Officer. That does not mean he ceased to be a lawyer or that no communication with him could be privileged. But it confirms why mere reliance upon his legal qualification or title cannot answer the present question. 

72    It is trite that in-house lawyers frequently wear several hats. They may advise upon legal rights and obligations, but they may also supervise compliance, participate in risk management, undertake investigations, approve transactions or perform senior managerial functions. Where privilege is asserted, the Court must identify the capacity in which the lawyer acted in relation to the communication in question. The fact that Mr Breslin was considered independent of the Deal Team may support the conclusion that he performed a valuable checking or compliance function. It does not establish that the dominant purpose of that function was the giving of legal advice. 

73    Other documents point in the same direction. The credit memorandum at page 119 of the Court Book is telling. It records the various workstreams informing the proposed transaction and refers to external legal advisers retained to advise upon aspects of the transaction. Against that setting, the Sterling work appears as an enhanced background or credit-checking process. The memorandum does not suggest that the Sterling checks were commissioned to enable Mr Breslin to provide legal advice or that they formed part of the external legal advisory workstream. 

74    Exhibit A, being the ABL Factoring Due Diligence Checklist, is also important. It lists a range of diligence enquiries necessary to assess a proposed transaction. The enhanced checks sit naturally within a broad corporate and credit due diligence exercise undertaken for the benefit of those deciding whether to transact. The checklist includes matters such as credit checks and other commercial investigations. The Sterling process is at least equally consistent with that commercial function as it is with the asserted legal one. Indeed, in my view, it is considerably more consistent with it. 

75    This material matters because White Oak’s case is not that the Sterling reports themselves constituted legal advice. Its case is that the structure within which the reports were commissioned, routed and then reviewed demonstrates that they and the associated communications were brought into existence for the dominant purpose of enabling Mr Breslin to provide legal advice. 

76    But a process cannot acquire a dominant legal purpose merely because its results are routed through a lawyer before being passed to commercial decision makers. If information is commissioned as part of enhanced corporate due diligence so that the organisation can decide whether to lend or invest, the fact that an in-house lawyer reviews and synthesises it does not retrospectively transform the purpose for which it was obtained. The lawyer’s review may itself attract privilege if it contains or reveals legal advice. But that is a different question from whether the underlying reports and every communication associated with the process are privileged. 

77    White Oak relied heavily upon the fact that the Sterling reports were not ordinarily provided to the Deal Team. I do not regard that fact as determinative. The issue is not whether the commercial decision-makers read the primary reports or instead received a synthesis, recommendation or “green light”. The issue is why the information was obtained and why the relevant communications came into existence. Information may be gathered for a commercial purpose and passed through a compliance or legal function before reaching the ultimate decision maker. The interposition of that function does not necessarily alter the dominant purpose of the exercise. 

78    The description of the outcome as a “green light” is itself illuminating. The Background Check Committee’s conclusion became one of numerous factors considered by the Investment Committee in deciding whether to approve the transaction. Mr Breslin might sometimes provide that conclusion directly to the Deal Team without any formal committee meeting. The process therefore operated as one of the internal conditions or checks informing the commercial decision whether to lend. 

79    Although not determinative, the later use of the reports also tends to support that conclusion. In Category 2, Ms McKee requested the earlier communications and underlying report and forwarded them to the Investment Committee. In Category 3, personnel within another White Oak financing affiliate sought the earlier reports and assessment because they were considering participation in the same programme. White Oak submitted that these were later uses of work which was privileged when first created and therefore did not determine its original purpose. 

80    It is true that subsequent use cannot, of itself, alter the historical purpose for which a document was created. But subsequent use may illuminate the function which the document was objectively intended to perform. The fact the Sterling reports and assessments were later retrieved and deployed to inform further investment consideration is consistent with their being part of a commercial due diligence resource and less readily reconciled with the proposition that the reports were commissioned principally to enable advice upon a discrete legal question. 

81    Category 3 is particularly revealing. WOCF personnel considering participation in the Greensill programme requested the Sterling reports because they wished to make use of work already done by another affiliate. The documents were sought to facilitate a further commercial assessment of whether that entity should participate. The fact that Mr Breslin had previously reviewed them did not give the reports a privileged character; nor could the forwarding of the reports for a new commercial purpose be protected merely because they had once passed through the legal team. 

82    I have also inspected the two communications identified during oral argument as representing the “high-water” mark of White Oak’s claim. The so-called “high-water” mark is at a very low ebb. In fact, they serve to reinforce the difficulties disclosed by the other evidence. 

83    The first is the email from Mr Breslin to Mr Jacob Schapiro in the Category 1 chain, sent at the conclusion of Mr Breslin’s review of the Project Irish background checks. The affidavit and submissions describe it as advice given in response to a request for legal advice and rely upon the fact that Mr Schapiro and Mr Otte had not themselves received the underlying Sterling reports. 

84    The communication unquestionably shows that Mr Breslin reviewed the material and expressed a conclusion about it. But the fact that a lawyer reviews due diligence and reports a conclusion does not, without more, establish that the communication is legal advice. The communication does not identify any legal question upon which Mr Breslin was asked to advise. It does not analyse legal rights or obligations, identify the legal consequences of a particular fact, or disclose an exercise of independent legal judgment of the character asserted in the affidavits. Objectively, it reads as the outcome of an internal background-check, risk or compliance review undertaken as part of the process of deciding whether the transaction should proceed. 

85    I do not suggest that legal advice must adopt any particular form or contain elaborate legal reasoning. But one cannot simply begin with the proposition that Mr Breslin was a lawyer, label his conclusion “advice”, and thereby establish that its dominant purpose was legal. The communication must be considered within the process which generated it. That process was initiated by the Deal Team, concerned persons selected for investigation by the Deal Team, and supplied a result which (when viewed objectively and with commonsense) contributed to the commercial decision whether to transact. 

86    The second representative document is the email from Mr Breslin to Ms Barbara McKee in the Category 2 communications. The email makes some reference to legal matters and transmits or recalls aspects of the earlier Sterling work. It therefore provides White Oak with a stronger basis for contending that legal considerations formed part of Mr Breslin’s review. 

87    Even so, the document does not establish that the dominant purpose of the underlying process or of the communication was the obtaining or giving of legal advice. It does not respond to an identified request from Ms McKee for advice upon a specific legal question and is part of the retrieval and circulation of prior background-check material for use within White Oak’s investment and governance process. The underlying report accompanied the communication and was then forwarded to the Investment Committee, the body charged with making the commercial decision whether to fund a transaction. 

88    The fact that the email mentions matters which may possess a legal character does not establish predominance. Background reports of this kind commonly include litigation, insolvency, regulatory and criminal matters. Those matters may be relevant both to legal exposure and to the commercial prudence of lending, but the evidence must establish which purpose prevailed. Here, the broader process and the communication itself point to a risk-assessment and transaction approval function, not a discrete legal advisory exercise. 

89    These representative communications are materially different from what one would ordinarily expect where factual material is provided to a lawyer so that the lawyer may advise a client upon a legal issue. Standing back, the following matters point in the same direction: 

(1)    Sterling was retained under a general engagement to undertake information-gathering and enhanced background checks, not pursuant to instructions from a lawyer concerning an identified legal issue;

(2)    the Deal Team selected the persons and entities to be investigated and initiated the checks because of its knowledge of the proposed transaction;

(3)    the pro forma consent documents established a lawful or legitimate due diligence purpose, not a dominant purpose of obtaining legal advice;

(4)    Mr Breslin’s position and experience were consistent with the performance of risk and compliance functions as well as legal functions;

(5)    the credit memorandum and due diligence checklist place the checks within a broad commercial and credit diligence process;

(6)    the outcome of the review was a “green light” or other recommendation forming one factor in the Investment Committee’s commercial decision whether to transact;

(7)    the later retrieval and circulation of the reports demonstrate their practical utility as due diligence material for further commercial decisions; and

(8)    (importantly) the two “high-water” mark representative communications inspected by the Court do not objectively reveal the independent legal advisory character attributed to them in the affidavits.

90    The segregation of the reports from the Deal Team and their initial provision to lawyers are considerations supporting White Oak’s case, but they do not outweigh the matters just identified and they demonstrate the route by which the information passed through the organisation. They do not establish why the information was obtained in the first place or that legal advice predominated over the evident independent commercial due diligence purpose. 

91    I am therefore not satisfied that White Oak has proved that the Sterling reports or the communications in dispute were brought into existence for the dominant purpose of obtaining or giving legal advice. The evidence falls materially short of discharging the onus under s 140(1) of the Evidence Act 1995 (Cth).

92    The claims for legal professional privilege therefore fail. White Oak must produce the disputed documents for inspection.

D     APPLICATION B – MARSH APPLICATION CONCERNING THE DELOITTE REPORTS

D.1     The application

93    Application B occupied the greatest amount of Court time and requires extended consideration. It concerns Marsh’s application for production of unredacted copies of the Deloitte Reports prepared following the collapse of Greensill. 

D.2     The submissions

94    Marsh was represented by Mr Ahmed SC, with Mr Kane and Ms Gollan. Credit Suisse and the UBS cross-respondents were represented by Mr Hutley SC and Ms Campbell. 

95    Credit Suisse had, for reasons that remain obscure, originally maintained that the Deloitte Reports were privileged in their entirety. That broad claim was no longer pressed by the time of the hearing. Belatedly, Credit Suisse had accepted that the reports themselves had been created for multiple purposes and that the dominant purpose test could not be established in respect of each report as a whole. It produced redacted versions and confined its claims to passages said to reproduce, disclose or reveal the substance of separately privileged legal advice obtained before or during the Deloitte investigation, together with one passage said to record a communication protected by without prejudice privilege. The remaining redactions comprised less than ten per cent of the reports extending to more than 275 pages and over 700 paragraphs. 

96    Understandably, that forensic volte-face formed part of Marsh’s submissions. Marsh stressed that Credit Suisse’s narrowed position was not communicated until early July 2026, shortly before the hearing, after very considerable work had been undertaken concerning Swiss and other foreign laws and after the Court had appointed a referee to report upon questions of Swiss law. Marsh submitted that the belated narrowing of the claim had placed it at a disadvantage and that the evidence ultimately relied upon to sustain the remaining redactions was itself served very late. 

97    Credit Suisse accepted that its evidence and submissions had been served late and described that circumstance as regrettable. It submitted, however, that the change of position reflected a genuine reassessment of the evidence and the inability to obtain evidence from Credit Suisse personnel with direct knowledge of all the purposes for which the Deloitte Reports had been prepared. The production of substantially unredacted reports was said to represent a proper attempt to narrow the controversy rather than an acknowledgment that the earlier claim had been advanced without a tenable foundation.

I    The applicable law and the foreign-law evidence

98    Questions of foreign law arose because the Deloitte Reports had been provided to regulators in several jurisdictions, and the circumstances in which regulatory disclosure could occur consistently with the maintenance of confidentiality depended in part upon the legal obligations and powers of the relevant regulators. The parties had originally proposed (or at least assumed the preparation of) competing expert evidence. At a case management hearing, I determined that such a course would not be consistent with facilitating the overarching purpose in Pt VB of the FCA Act. In due course, commendably, the parties placed before the Court agreed propositions concerning the applicable law of Switzerland, the United Kingdom, Luxembourg and Hong Kong, including the statutory regimes governing regulatory secrecy, permitted use and onward disclosure. 

99    In this way, save for one residual issue of Swiss law, any foreign-law questions were resolved by agreement. The remaining question of Swiss law was referred to a referee for inquiry and report. The referee furnished a report dealing with that issue and, there being no opposition to its adoption, the report was adopted. The foreign-law material was therefore relevant as part of the factual and legal setting in which the disclosures to the regulators occurred, and in assessing the nature and extent of the obligations of confidence to which the recipients were subject. 

100    A distinct and potentially interesting legal question was raised orally by Mr Hutley concerning the law governing the determination of privilege and waiver in an application such as the present (which, it is now clear, involves the assertion of a substantive right to maintain legal professional privilege). He referred in that connexion to the reasoning of Besanko J as to choice of law questions in the context of assertions of legal professional privilege in Stewart v Australian Crime Commission [2012] FCAFC 151; (2012) 206 FCR 347. Whatever real questions might have arisen by reason of the international character of the documents and their disclosure, and the distinction between matters of substance and matters of procedure in relation to choice of law rules, they do not require determination here. The parties expressly agreed, for the purposes of this application, that the claims to privilege and the question of waiver should be determined according to Australian law. 

101    Accordingly, the agreed foreign-law propositions and the adopted referee’s report bear upon the circumstances in which the reports were supplied to, held and capable of being used or disclosed by the relevant regulators. The ultimate questions whether the redacted passages attract legal professional privilege and whether Credit Suisse acted inconsistently with maintaining their confidentiality are, however, to be determined by the application of the common law of Australia. 

II    Whether the remaining redactions were privileged

102    Marsh’s first substantial submission was that Credit Suisse had failed to establish privilege in the passages which remained redacted. It emphasised that Deloitte had been retained to conduct an “independent, objective and fact based internal investigation” into the collapse of the supply chain finance funds; that the engagement contemplated disclosure and discussion of the reports to the Swiss Financial Market Supervisory Authority (FINMA) and other regulators; and that Credit Suisse had at one stage publicly indicated that the outcome of the investigation would be communicated. Against that background, Marsh submitted that it was surprising that 53 passages were now said to reproduce or reveal privileged advice. 

103    Marsh placed particular reliance upon perceived deficiencies in the affidavit of a solicitor, Ms Rebecca Spigelman. It submitted that she had: no direct involvement in the preparation of the underlying advices; no personal knowledge of the circumstances in which they had been sought or given; and no information from the relevant Credit Suisse employees or legal advisers. Her evidence was said to rest largely upon her own review of documents and to employ general and conclusory descriptions rather than focussed evidence establishing the privilege attaching to each redaction. Marsh submitted that inspection could not be used to cure a failure to adduce sufficient evidence in support of a claim. 

104    The redactions had been organised into ten categories: advice given by Linklaters in 2016, April 2017, October 2017 and 2019; advice given by Morgan Lewis in 2020 and 2021; advice from PJ Legal; internal Credit Suisse legal advice; the single without prejudice communication; and passages redacted to preserve claims maintained by GCUK. Marsh submitted that the evidence did not explain with sufficient precision how each passage reproduced, disclosed or revealed the substance of the relevant advice. 

105    Credit Suisse responded that the remaining claims did not depend upon establishing that the Deloitte Reports themselves had been prepared for the dominant purpose of obtaining legal advice. The redacted passages reproduced, summarised or necessarily revealed the substance of independently privileged communications. The relevant underlying advices had themselves been discovered and, save where separately challenged in the IAL application, their privileged character was not in dispute. The question was therefore narrower: whether disclosure of the impugned passages would reveal the substance of communications already protected by privilege. 

106    The Deloitte Reports were addressed to the lawyers, Walder Wyss, marked as “attorney work product”, “privileged”, “strictly confidential” and “preliminary”, and stated that Credit Suisse had retained Walder Wyss to provide legal advice in connexion with potential civil and criminal proceedings. They also recorded that Deloitte had been retained by Walder Wyss to assist in establishing the facts relevant to that advice and that the reports reflected substantial input from Walder Wyss. Those matters, Credit Suisse submitted, provided the setting in which the particular redactions were to be examined. 

107    Credit Suisse further submitted that the underlying advices had been separately identified and that Marsh’s argument risked confusing the purpose of the Deloitte Reports as a whole with the privilege attaching to discrete information incorporated within them. Even if the reports were prepared for several purposes and were not wholly privileged, a passage which reproduced legal advice did not lose its character merely because it appeared within a broader non-privileged report. 

108    During oral argument, it became apparent that the contest concerning subsistence was narrower than the written submissions might have suggested. Mr Hutley observed that the underlying advices were individually identified in discovery and were not themselves the subject of Marsh’s challenge. In substance, therefore, the remaining contest concerned whether the redacted passages revealed the substance of those advices and, if so, whether privilege had later been waived through the treatment of the Deloitte Reports. 

III    Marsh’s waiver case

109    Marsh’s waiver case was put in several ways.

110    First, it submitted that the Deloitte investigation had from its inception been closely connected with regulatory investigations, especially the FINMA investigation. The engagement letter expressly contemplated that Deloitte might be required to disclose and discuss its deliverables with FINMA and other regulators. Credit Suisse relied upon the existence of the external investigation in its dealings with FINMA and provided the reports to regulators in Switzerland, Luxembourg, Hong Kong and the United Kingdom. Marsh submitted that the reports were therefore not merely confidential documents prepared for internal legal advice, but instruments deliberately used to respond to and influence regulatory investigations. 

111    Secondly, Marsh relied upon the similarity between the subject matter of the regulatory investigations and the allegations advanced in the present proceedings. FINMA investigated and made findings concerning Credit Suisse’s management of the supply chain finance funds. Marsh’s cross-claim raised allegations concerning substantially the same factual substratum. Mr Ahmed submitted that Credit Suisse could not deploy the Deloitte Reports to put its position before regulators and then withhold the same material in litigation concerning the matters investigated. 

112    In developing that argument, Marsh relied by analogy upon Goldberg v Ng [1995] HCA 39; (1995) 185 CLR 83. In that case, privileged material had been used to answer or influence an external complaint concerning the same subject matter as the later litigation. Although Marsh accepted that the identity of parties and the precise forensic setting differed, it contended that the essential inconsistency remained: the privilege holder had chosen to deploy confidential material to advance its position in one forum and then sought to deny access to it in another. 

113    Thirdly, Marsh submitted that Credit Suisse had waived privilege by voluntarily disclosing the reports to the United Kingdom Financial Conduct Authority (FCA). The disclosure was not compelled. The agreed propositions of English law recognised that privileged communications were protected items which the FCA could not require to be produced under the relevant provisions of the Financial Services and Markets Act 2000 (UK) (FSM Act). Credit Suisse could therefore have withheld the reports but chose to provide access. 

114    Marsh’s case increasingly focussed upon the precise conditions upon which the FCA received the reports. Credit Suisse initially proposed read-only access, redaction of employee and third-party names and redaction of sections lacking a United Kingdom connexion. The FCA resisted any condition which might restrict its ability to take notes, capture information, use the report or make disclosures required or authorised by the FSM Act. Credit Suisse ultimately confirmed that the FCA could receive the reports subject to the confidentiality restrictions in s 348 of the FSM Act and could use them for its statutory functions as the United Kingdom’s financial services regulator. Marsh submitted that Credit Suisse thereby authorised use of the reports for a purpose extending beyond the confidential provision of information to supervise Credit Suisse. 

115    Marsh contended that s 348 imposed only qualified confidentiality. It permitted disclosure in defined circumstances and did not prevent the FCA from using the reports in investigations or enforcement proceedings or from disclosing their contents where required in the performance of statutory functions. Credit Suisse therefore relinquished control over whether the information would be used or disclosed in a way destructive of confidentiality. In Marsh’s submission, waiver occurred when Credit Suisse voluntarily delivered the reports subject to those conditions, not only if and when the FCA later exercised a statutory power of disclosure. 

116    Marsh resisted the proposition that waiver depended upon proof that the FCA had actually disclosed or publicly deployed the reports. The governing question concerned the conduct of Credit Suisse. Once Credit Suisse authorised the FCA to use the reports for its statutory functions, in circumstances where those functions included investigation, enforcement and lawful onward disclosure, Credit Suisse had acted inconsistently with maintaining the confidentiality protected by privilege. 

117    Fourthly, Marsh relied upon the later correspondence between Credit Suisse and the FCA. After access had expired, the FCA sought renewed access to the reports. Credit Suisse proposed conditions requiring read-only access and prohibiting disclosure to third parties or other authorities without its written consent. The FCA refused those restrictions because they were inconsistent with its statutory functions. Credit Suisse then declined to provide renewed access, explaining that the FCA might be obliged to disclose the report or its contents in connexion with its investigation of Greensill entities and that this would risk loss of privilege and compromise Credit Suisse’s position in litigation. 

118    Marsh submitted that this correspondence illuminated the true effect of the earlier access conditions. By early 2023, Credit Suisse recognised that the FCA’s statutory use and disclosure powers were inconsistent with maintaining privilege. But the FCA had possessed materially the same powers when Credit Suisse voluntarily provided the reports in 2022. The later change of position could not reverse a waiver which had already occurred. 

119    Fifthly, Marsh relied upon aspects of Credit Suisse’s evidence on the application. It submitted that, in attempting to establish the privilege attaching to particular redactions, Credit Suisse had itself disclosed sufficient information about the substance of the underlying advices to amount to waiver. That argument applied to only some of the categories, but Marsh maintained that the evidence could not both reveal the substance of advice sufficiently to establish the claim and preserve complete confidentiality in that substance. 

IV    Credit Suisse’s answer on waiver

120    Credit Suisse submitted that Marsh’s argument treated disclosure as equivalent to waiver and failed to attend to the terms and circumstances of each regulatory disclosure. The governing test was whether Credit Suisse’s conduct was objectively inconsistent with continuing confidentiality. A voluntary disclosure could be made on a limited basis without waiver, particularly where the recipient was subject to statutory or other duties of confidence and the disclosure was not made to obtain an advantage over an opposing party in related litigation. 

121    Mr Hutley emphasised that the reports were not handed to regulators without restriction. In each case, Credit Suisse asserted privilege and confidentiality. The regulators received the reports for limited regulatory purposes and under statutory secrecy regimes. The reports themselves were prominently marked as privileged and confidential. The fact that a regulator had powers of use or disclosure in defined circumstances did not mean that confidentiality had been abandoned. 

122    A central part of Mr Hutley’s oral argument concerned the distinction between an authorisation to use confidential information for a limited purpose and an abandonment of confidentiality. He submitted that if a document were delivered subject to an obligation of confidence, with permission to use it only if a particular statutory or legal condition arose, the delivery did not itself constitute waiver. If the recipient later used or disclosed it in a manner which caused confidentiality to be lost, that later event might prevent the privilege holder from maintaining the claim; but it did not follow that privilege had been waived at the moment of the initial limited disclosure. 

123    There is no doubt that delivery without limitation, or delivery on terms permitting the recipient to do whatever it wished, would be inconsistent with confidentiality, but Mr Hutley’s submission was that this was not such a case: here Credit Suisse had supplied the reports on the basis that they would remain confidential, subject only to use in accordance with the recipient regulator’s lawful functions. 

124    As to FINMA, Credit Suisse submitted that the reports were provided on express terms preserving privilege and confidentiality. FINMA was subject to statutory official secrecy, and the applicable exceptions were confined. Credit Suisse submitted that it relied upon the Swiss Federal Supreme Court’s conclusion that the provision of the reports to FINMA had not waived privilege, and contended that the reports had not been deployed in the manner contemplated by Goldberg v Ng: they had not been provided to Marsh, IAL or another litigation opponent, and they had not been used to obtain a forensic advantage in these proceedings. 

125    As to the FCA, Credit Suisse submitted that the factual premise of Marsh’s supplementary case was erroneous. The FCA did not receive a copy which it could retain and disseminate. The evidence was that it received temporary electronic access through an Intralinks portal on a read-only basis and could not download or retain the reports. The fact that the FCA repeatedly sought renewed access after its access expired was said to confirm the practical limitations which had governed the original disclosure. 

126    Credit Suisse also (surprisingly) disputed that the version supplied was wholly unredacted. Although one FCA communication referred to receipt of an “unredacted” report, later correspondence indicated that only names and entities remained redacted. 

127    The FCA was said to have received the reports on the basis of a “limited waiver” and subject to s 348 of FSM Act. Credit Suisse relied upon the FCA’s own recognition that receipt of privileged material on a limited-waiver basis did not necessarily waive privilege against third parties. It also relied upon the FCA’s ordinary practice, if considering disclosure under a statutory exception, of notifying the regulated firm in advance and allowing it to make representations. 

128    Credit Suisse submitted that the theoretical existence of statutory exceptions was insufficient. Many obligations of confidence are qualified by circumstances in which disclosure may be compelled or authorised by law. A subpoena, court order or statutory duty may override confidentiality without meaning that the earlier confidential communication was itself inconsistent with privilege. The relevant inquiry required an assessment of the realistic prospect of disclosure, not the abstract existence of a statutory power. 

129    In the circumstances of the FCA disclosure, there was said to be no realistic prospect that the privileged passages would be disseminated. The FCA’s investigation at the relevant time concerned Greensill entities rather than Credit Suisse; the redacted legal advices were not primary evidence concerning Greensill; the FCA lacked a practical means of retaining or sharing the reports; and Credit Suisse would ordinarily have been given an opportunity to make submissions before any proposed disclosure. 

130    Credit Suisse relied upon Australian Securities and Investments Commission v Macleod [2024] FCAFC 174; (2024) 307 FCR 332 and Cantor v Audi Australia Pty Ltd [2016] FCA 1391 as demonstrating that confidential disclosure to a regulator, despite statutory exceptions permitting use or disclosure, did not necessarily waive privilege. The relevant considerations included whether the regulator recognised the continuing claim of privilege, whether confidentiality remained the norm, and whether the material had been deployed against an opposing party in related litigation. 

131    As to the 2023 correspondence, Credit Suisse submitted that it did not establish that the earlier disclosure had involved waiver. By then the context and apparent purpose of the FCA’s request had changed. The renewed request related to an investigation of Greensill entities and raised a different prospect of disclosure to third parties. Credit Suisse’s later caution reflected an ex post facto assessment of a changed regulatory setting and could not retrospectively alter the legal character of the limited access provided in 2022. 

132    Mr Hutley also submitted that the later letter did not state that privilege had already been lost. It identified a risk that privilege might be lost if the FCA thereafter disclosed or deployed the reports. That concern was consistent with Credit Suisse’s case that the initial limited provision had preserved confidentiality, while broader use or onward disclosure might produce a different result. 

V    The supplementary submissions

133    By the conclusion of the first stage of the oral hearing, it was apparent that the parties’ written submissions had not adequately addressed the detailed circumstances of the FCA disclosure. I was particularly concerned with the precise use authorised in 2022, the operation of s 348 of FSM Act and its exceptions, the practical restrictions upon the FCA’s access, and the significance of Credit Suisse’s refusal to renew access in 2023. 

134    The application was therefore stood over, and the parties were directed to file focussed supplementary submissions on the disclosure to the FCA. Marsh’s supplementary submissions developed its case that the disclosure had been voluntary; that the FCA had refused restrictions inconsistent with its statutory functions; that Credit Suisse had accepted qualified rather than absolute confidentiality; and that the later correspondence showed Credit Suisse itself understood the risk of loss of privilege inherent in the FCA’s permitted use. 

135    As had been foreshadowed orally, Credit Suisse’s supplementary submissions relied upon the temporary and read-only nature of the access, the inability of the FCA to download or retain the reports, the continuing privilege claim, the limited-waiver basis of receipt, the FCA’s statutory confidentiality obligations and practices, and the difference between the purpose of the original access and the later investigation of Greensill entities. 

D.3     Consideration

136    The real controversy raised by Application B is not whether the passages remaining redacted reveal the substance of legal advice. Upon inspection of the Deloitte Reports and the underlying advices, I am comfortably satisfied that they do. Nor, despite some initial suggestion to the contrary, is there any substantial dispute that those underlying communications themselves attracted legal professional privilege. Rather, as I have noted, the central question that emerged is whether Credit Suisse subsequently acted inconsistently with maintaining the confidentiality attaching to those communications.

137    It is convenient to begin by identifying what this application is not about. It is not suggested that Credit Suisse publicly deployed the Deloitte Reports, published them, or otherwise placed them into the public domain (or that the reports were voluntarily supplied to Marsh or to any party to this litigation). As noted above, the disclosures relied upon are disclosures made to the financial regulators following the collapse of the Greensill supply chain finance funds. 

138    Equally, it is important not to lose sight of the context in which those disclosures occurred. The agreed foreign law material establishes that the relevant regulators did not receive the Deloitte Reports free of any legal constraint. Rather, as I will explain in more detail below, each regulatory regime recognised obligations of confidentiality governing information supplied in the course of regulatory functions, although those obligations were subject to defined statutory qualifications permitting disclosure in specified circumstances. 

139    The determinative issue is whether Credit Suisse’s conduct, viewed objectively, was inconsistent with the maintenance of the confidentiality which legal professional privilege exists to protect. The inquiry is one of practical inconsistency, assessed by reference to the circumstances in which the disclosures occurred.

140    The submission of Marsh that Credit Suisse voluntarily chose to provide the Deloitte Reports to the relevant regulators (and voluntarily afforded the FCA access to the reports notwithstanding that the FCA declined to accept all of the restrictions which Credit Suisse initially sought to impose) has some immediate attraction. If one looks only at the statutory exceptions to the confidentiality obligations imposed upon the regulators, it can readily be said that Credit Suisse must have accepted the possibility that the reports might ultimately be disclosed beyond the regulator itself. But, in my view, the submission proceeds from a premise which is too absolute. 

141    It treats confidentiality as an all-or-nothing concept. On that approach, unless Credit Suisse retained complete control over every future use of the Deloitte Reports, confidentiality must necessarily have been abandoned. But the question is not whether Credit Suisse retained complete control, but whether, viewed objectively, it acted inconsistently with maintaining the confidentiality of the privileged communications.

142    Commercial parties and regulators frequently deal with confidential material on a limited basis. The recipient may be entitled to use the material for a defined statutory purpose while remaining subject to obligations of confidence. The fact that those obligations are themselves qualified by statute does not mean that the privilege holder has acted inconsistently with maintaining confidentiality merely by participating in that process. 

143    The dealings with the individual regulators illustrate why Marsh’s submission cannot be accepted at the level of generality for which it contends. Although the statutory regimes differed in their detail, the contemporaneous documents reveal a consistent theme. Credit Suisse repeatedly maintained that the Deloitte Reports remained subject to legal professional privilege and repeatedly asserted that they were confidential. In any event, none of this can be resolved in the abstract, it is therefore necessary to examine the dealings with each regulator in turn in greater detail.

I    FINMA

144    The earliest dealings were with the Swiss Financial Market Supervisory Authority (FINMA). Those dealings extended over a considerable period and are important because they demonstrate the consistent position adopted by Credit Suisse. They reveal repeated assertions that the Deloitte Reports were the subject of legal professional privilege and confidential. At the same time, Credit Suisse recognised the practical reality that FINMA was exercising compulsory supervisory powers in relation to the collapse of the Greensill supply chain finance funds and sought to accommodate those investigations without abandoning its claims to privilege.

145    The chronology is significant. Credit Suisse, through its Swiss lawyers, repeatedly explained that the Deloitte Reports were privileged and proposed mechanisms by which FINMA could inspect them while preserving that status. Those mechanisms included restrictions upon copying, onward dissemination and use outside FINMA’s supervisory functions. FINMA did not accept Credit Suisse’s legal analysis concerning privilege. Nevertheless, the reports were ultimately provided within the framework of the Swiss supervisory regime, under which FINMA itself was subject to statutory duties of confidentiality, albeit duties admitting defined statutory exceptions.

146    As noted above, the question of waiver falls to be determined according to Australian law. However, the Swiss regulatory framework forms part of the objective factual circumstances in which disclosure occurred. Those circumstances demonstrate an entity consistently seeking to preserve confidentiality while responding to compulsory regulatory demands. They do not disclose conduct objectively inconsistent with maintaining privilege.

147    The same observations apply to the subsequent provision of the reports to the Swiss Public Prosecutor. Those disclosures also occurred within a compulsory statutory framework. They do not alter the essential character of the disclosures made to FINMA and add little to the present analysis.

II    The Luxembourg regulator (CSSF)

148    During the oral hearing today, greater attention was devoted to the dealings with the Luxembourg regulator, the Commission de Surveillance du Secteur Financier (CSSF), than had been apparent from the written submissions. Initially, I was concerned that the Luxembourg correspondence might suggest a more deliberate forensic choice by Credit Suisse to relinquish confidentiality in order to secure some broader regulatory advantage. Having considered the contemporaneous documents more closely, I do not regard that concern as dispositive.

149    The correspondence demonstrates that Credit Suisse maintained the same essential position as it had adopted elsewhere. It asserted that the Deloitte Reports were privileged and confidential and that, as a matter of principle, they ought not to be disclosed to third parties. At the same time, however, Credit Suisse was confronted with a regulatory demand accompanied by the prospect of adverse regulatory consequences should the material not be produced. It therefore agreed to provide the reports while continuing to maintain that they remained privileged and while seeking assurances concerning their confidential treatment and use for supervisory purposes.

150    That conduct reflects the practical accommodation of a compulsory regulatory regime while continuing to insist that the privileged status of the documents remained intact. The fact that Credit Suisse ultimately complied with what it regarded as a lawful regulatory requirement does not mean that it thereby acted inconsistently with maintaining confidentiality. Compliance with compulsory legal obligations is not ordinarily understood as evidencing an intention to abandon legal rights.

151    Nor do I regard the statutory exceptions to the CSSF’s obligations of professional secrecy as altering that conclusion. As with the Swiss regime, the existence of carefully defined statutory gateways permitting disclosure in specified circumstances is not equivalent to an unrestricted entitlement to disseminate the reports. The disclosures remained embedded within a regulatory relationship characterised by statutory duties of confidentiality.

III    Hong Kong Monetary Authority

152    The dealings with the Hong Kong Monetary Authority (HKMA) similarly reinforce Credit Suisse’s position. Once again, the contemporaneous correspondence reveals repeated assertions that the Deloitte Reports remained privileged and confidential. Considerable attention was directed to the practical arrangements by which the HKMA might inspect the reports. Various mechanisms were proposed, including inspection without copying, restrictions upon retention and requests that Credit Suisse be notified before any onward disclosure occurred.

153    Those practical arrangements are not decisive. But they objectively demonstrate an ongoing attempt by Credit Suisse to preserve the confidentiality of the reports notwithstanding the regulatory investigation. Credit Suisse consistently sought to confine the circumstances in which they could be inspected and to maintain the privileged status which it had asserted from the outset.

IV    Financial Conduct Authority

154    The dealings with the Financial Conduct Authority (FCA) occupied the greatest part of the argument. Marsh’s submission was that it was during those dealings that Credit Suisse objectively abandoned any claim to maintain confidentiality. In particular, Marsh relied upon the negotiations culminating in the provision of access to the Deloitte Reports notwithstanding the FCA’s refusal to accept all the conditions originally proposed by Credit Suisse.

155    The chronology warrants careful examination.

156    Initially, Credit Suisse proposed that access be provided electronically on a read-only basis, subject to restrictions designed to preserve confidentiality. Those proposals included limitations upon downloading, copying and onward dissemination. The FCA objected to aspects of those arrangements, taking the position that it could not accept conditions inconsistent with the proper discharge of its statutory responsibilities under the Financial Services and Markets Act 2000 (UK).

157    The subsequent correspondence has something of the character of a negotiated stand-off. Credit Suisse sought to preserve confidentiality to the greatest extent possible and the FCA was unwilling to fetter the exercise of statutory functions conferred upon it by Parliament. Ultimately, access was provided within that statutory framework.

158    Marsh submitted that this marked the point at which waiver necessarily occurred because Credit Suisse accepted that the FCA might thereafter use or disclose the reports pursuant to its statutory powers. I am unable to accept that submission.

159    The question is not whether Credit Suisse retained complete control over every conceivable future use of the reports. At the risk of repetition, the question is whether, viewed objectively, it acted inconsistently with maintaining the confidentiality which legal professional privilege protects.

160    The answer to that question is informed by the entirety of the dealings between Credit Suisse and the FCA. As I have noted, throughout the correspondence Credit Suisse consistently asserted privilege and sought to preserve confidentiality. It proposed practical mechanisms designed to minimise dissemination of the reports and it was never suggested that the FCA was free to use the reports as it wished or that privilege had been abandoned.

161    Equally significant is what occurred subsequently. When further access was later sought, Credit Suisse did not simply acquiesce, but it sought additional protections and, when agreement could not be reached, declined to provide renewed access. That later correspondence does not demonstrate that privilege had earlier been abandoned but it confirms that Credit Suisse consistently regarded the reports as remaining privileged and confidential notwithstanding the earlier disclosures made within the regulatory framework.

V    Standing back

162    Standing back from the individual dealings with each regulator, there are obvious differences between the statutory regimes, the mechanisms by which access was afforded and the practical arrangements governing each disclosure. But those differences should not obscure the common features which run through each of the disclosures.

163    As I have explained, in every case Credit Suisse consistently maintained that the Deloitte Reports were privileged and confidential, and sought to limit the purposes for which the reports might be used or copied. Disclosures occurred within existing regulatory relationships characterised by statutory duties of confidentiality, albeit duties subject to defined statutory qualifications. None of the disclosures involved the deployment of privileged material against an opponent (in the well-known litigious sense) or conduct objectively demonstrating an abandonment of confidentiality.

164    Ultimately, Marsh’s submissions proceed upon the proposition that once a privilege holder provides privileged material to a regulator, or accepts that the regulator may exercise statutory powers in relation to it, privilege is lost. In my view, that proposition states the Australian law too broadly. Compliance with compulsory regulatory regimes attended by continuing obligations of confidence is not, without more, conduct inconsistent with maintaining legal professional privilege. Nor does limited voluntary disclosure to a regulator necessarily have that consequence where the disclosure occurs for a confined regulatory purpose and remains subject to obligations of confidence. Having regard to the objective circumstances of each disclosure, considered both individually and collectively, I am not persuaded that Credit Suisse acted inconsistently with maintaining the confidentiality which legal professional privilege exists to protect.

165    Although not determinative, it is worth noting that it would produce an anomalous result if documents which, according to the agreed foreign-law material, remained confidential when provided to financial regulators in Switzerland, the United Kingdom, Hong Kong and Luxembourg nevertheless immediately lost that confidential character because Australian law treated the act of confidential regulatory disclosure as constituting waiver. The foreign law does not determine the Australian question, but it is relevant in identifying the objective circumstances in which the disclosures occurred. 

166    It follows that the claims for legal professional privilege over the remaining redacted passages should be upheld. 

E     APPLICATION C – IAL PRIVILEGE APPLICATION

E.1     The application

167    Application C concerns IAL’s application for production of unredacted copies of communications over which Credit Suisse and the UBS cross-respondents maintain claims for legal professional privilege. The application originally extended to a substantially larger body of documents, but many claims were abandoned and the dispute was narrowed by agreement to 13 sample documents, together with three additional documents challenged by IAL. The remaining documents fall into three categories: 

(1)    documents relating to advice provided by Linklaters in 2016;

(2)    documents relating to advice provided by Linklaters in 2018; and

(3)    documents relating to advice provided by Morgan Lewis in 2020.

168    The claims formerly maintained by GCUK no longer require determination. 

169    IAL was represented by Mr Finch SC with Ms M Ellicott. Credit Suisse and the UBS cross-respondents were represented as indicated above. 

E.2     The submissions

170    IAL’s challenge was initially advanced on two related bases: first, it was said that Credit Suisse had failed to prove that the relevant communications were brought into existence for the dominant purpose of obtaining or giving legal advice; secondly, and alternatively, it was said that any privilege which attached had been waived when the advice, drafts of the advice, or communications revealing its substance were provided to GCUK and, in some instances, were intended to be provided to Marsh. 

171    The first submission concentrated upon the evidence adduced by Credit Suisse. Mr Finch emphasised that the principal evidence was given by Mr Crispian Lynch, a solicitor who had formed ex post views about the purpose of the communications from his review of the documents. There was a want of evidence from the Credit Suisse personnel who had sought the advice, from those who had participated in the communications, or from Linklaters or Morgan Lewis, being the solicitors who had provided the advice. Particular reliance was placed upon the absence of evidence from Ms Nina Egelhof, despite her involvement in several of the communications and the fact that she had provided affidavit evidence in the substantive proceeding on other subjects. The evidence, it was submitted, did no more than place a solicitor’s interpretation upon the documents and lacked the focussed and specific character required to establish dominant purpose. 

172    The alternative case concerning waiver assumed increasing importance as the oral argument developed. Mr Finch accepted that disclosure to a third party does not invariably destroy privilege. His contention was that Credit Suisse had not shown that the disclosures to GCUK were confined to a limited purpose or made in circumstances imposing any express or implied obligation of confidence. GCUK was not the client of Linklaters or Morgan Lewis; nor, on IAL’s case, was it a disinterested intermediary assisting in the provision of legal advice. It was the commercial counterparty which had designed and sold the financial products in which the Credit Suisse funds invested, and which had a direct commercial interest in defending the structure and legal characterisation of those products. 

173    The oral debate sometimes employed the metaphor of whether GCUK fell within the relevant confidential or privileged “circle”. The underlying proposition was that the advice had been communicated to persons outside the solicitor-client relationship without any demonstrated restriction upon its use or dissemination. The documents showed GCUK personnel reviewing drafts, commenting upon the legal analysis, disputing conclusions reached by Credit Suisse’s solicitors, suggesting corrections and, in some instances, communicating directly with Linklaters. According to IAL, these were not communications with a person brought into a confidential process for the limited purpose of enabling legal advice to be obtained but communications between sophisticated counterparties pursuing their distinct commercial interests. 

174    Credit Suisse’s answer was that this characterisation divorced the communications from the structure of the transactions and from the purpose for which the advice was sought. The Credit Suisse funds invested in notes originated by GCUK, but were not responsible for originating or designing the underlying financing arrangements or negotiating the associated insurance. GCUK possessed the information necessary to explain those arrangements. The advice sought from Linklaters and Morgan Lewis could not sensibly be obtained without acquiring from GCUK information concerning the programmes it had designed and administered. It was in that setting, Credit Suisse submitted, that the communications were to be understood. 

175    Credit Suisse asserted that the advice in each of the three categories required an understanding of GCUK’s operations and that the communications were made so that Credit Suisse could obtain information concerning financing and insurance arrangements for which GCUK was responsible. Credit Suisse relied upon contemporaneous expressions by GCUK personnel offering assistance and support as confirming that the communications were collaborative and directed to assisting Credit Suisse to obtain advice, rather than communications between parties acting adversely to one another. 

176    IAL accepted that GCUK had designed the financial products and possessed information required by Credit Suisse. It disputed, however, that this established the critical proposition. The transactions were of very substantial value, and the parties were commercial counterparties advancing their own interests. The communications themselves demonstrated that GCUK did not merely supply neutral factual material, but sought to challenge and correct the analysis of Credit Suisse’s lawyers. In particular, reliance was placed upon a communication in which Mr Greensill asserted that Credit Suisse’s lawyers had made several errors which GCUK would correct. IAL submitted that the provision of information by GCUK did not establish that the legal advice itself had to be disclosed to it, still less that such disclosure occurred subject to an obligation of confidence. 

177    It is convenient to describe the competing submissions by reference to the three categories in which the documents were organised. 

I    The 2016 Linklaters documents

178    The first category was represented by Item 58. The documents concerned advice obtained from Linklaters in relation to a potential investment by Credit Suisse in GCUK financial products. Credit Suisse maintained that the redacted communications disclosed the substance of that advice and that their character and context demonstrated that the advice was sought and provided for an orthodox legal purpose. 

179    IAL submitted that this conclusion had been assumed rather than proved. The fact that Linklaters produced a memorandum did not necessarily establish that it was brought into existence for the dominant purpose of legal advice, particularly where a document might have been commissioned with the intention that it be shared with others. There was no direct evidence from the Credit Suisse officer said to have sought the advice, and Mr Lynch’s conclusions were based only upon his supposition. 

180    The more substantial challenge concerned waiver. Item 58 included communications in which the Linklaters memorandum, and descriptions of its contents, were sent to Mr Greensill and Mr Solo. IAL emphasised that the final memorandum was deliberately provided to GCUK without any express confidentiality restriction or identified limitation upon further circulation. This was said to have occurred as part of the commercial process by which Credit Suisse considered participating in GCUK’s financing programmes. The fact that the parties were counterparties, rather than persons sharing a common legal interest, was said to make the disclosure inconsistent with the maintenance of confidentiality. 

181    Credit Suisse responded that the communications could not be understood as an indiscriminate disclosure of legal advice. They occurred in the context of obtaining and testing information concerning the products in which Credit Suisse was contemplating investment. GCUK was the only practical source of much of that information and was assisting Credit Suisse in a process which was, by its nature, confidential. The absence of an express confidentiality agreement was not determinative given that the relationship and purpose of the communications were said objectively to import an obligation that the material be used only for the purpose for which it had been provided. 

II    The 2018 Linklaters documents

182    The second and largest category concerned Items 3, 4, 5, 10, 13, 66, 106, 142 and 189. The documents arose from advice sought from Linklaters concerning GCUK’s multi-obligor financing programmes. They included the initial request for advice, successive drafts of a Linklaters memorandum, communications forwarding drafts to GCUK for comment, GCUK’s marked-up responses, internal Credit Suisse communications, and direct communications between Linklaters and GCUK seeking information and documents. 

183    IAL submitted that these documents presented an even clearer illustration of the difficulty confronting the privilege claims. GCUK personnel were copied into the initial request for advice and were thereafter invited to comment upon the analysis. Drafts were sent to GCUK, queries were raised with it, and GCUK marked up the memorandum and challenged aspects of Linklaters’ reasoning. It was submitted that this process served a substantial commercial purpose: the parties were negotiating and considering Credit Suisse’s exposure to GCUK programmes, including programmes associated with the GFG Alliance. The participation of GCUK was therefore said to weigh against characterising the communications as confidential communications made for the dominant purpose of obtaining legal advice. 

184    Item 66 assumed particular prominence: it was a copy of a draft Linklaters memorandum sent in advance of a meeting involving Credit Suisse, GCUK and Marsh. The “host” email asked that the documents be forwarded to all relevant persons on the GCUK side and to Marsh. IAL submitted that this was inconsistent with any confined or confidential disclosure. Far from limiting the audience, Credit Suisse had invited circulation to an undefined group of relevant persons, including a third-party insurance broker. 

185    Items 142 and 189 were also relied upon because they contained communications directly between Linklaters and GCUK without Credit Suisse being copied. IAL submitted that GCUK was not Linklaters’ client and that these communications were therefore not confidential communications between solicitor and client. More broadly, the direct contact was said to demonstrate that GCUK had become an active participant in the preparation of the analysis, rather than merely a source from which Credit Suisse separately obtained factual information. 

186    Credit Suisse, of course, characterised the documents differently. The initial email to Linklaters was plainly a request for legal advice and GCUK personnel were included so that they could provide documents and information about the programmes under consideration. The first draft was sent by Linklaters only to Credit Suisse personnel and was then forwarded to GCUK with specific queries so that inaccuracies could be identified and the factual assumptions underlying the advice could be tested. GCUK’s marked-up response and its answers to the queries were part of the information-gathering process required to permit Linklaters to complete its advice. 

187    On this analysis, the communications directly between Linklaters and GCUK did not lose their privileged character merely because Credit Suisse was not copied. Credit Suisse had authorised Linklaters to communicate with GCUK for the purpose of obtaining information required for the advice. The communications were therefore made as part of the process by which Credit Suisse obtained legal advice, rather than as an independent exchange between Linklaters and GCUK. Items 142 and 189 were said to be paradigm examples of requests by the solicitors for documents and information necessary to complete the advice. 

188    As to Item 66, Credit Suisse submitted that the request for circulation was not an invitation to disseminate the draft indiscriminately. It contemplated circulation within the GCUK organisation to those involved in the relevant programmes and, potentially, to Marsh in its capacity as insurance broker. The circumstances objectively imposed an obligation of confidence upon both GCUK and Marsh. Credit Suisse also relied upon evidence suggesting that the draft was not, in fact, forwarded to Marsh. 

189    Thus, by the conclusion of the oral argument, the competing positions concerning this category had become relatively clear. IAL treated the disclosure of successive drafts and legal analysis to GCUK as commercial deployment of advice to a counterparty whose interests were distinct and potentially adverse. Credit Suisse treated the same communications as a confined and confidential process of obtaining from the party responsible for the relevant programmes the information needed to secure accurate legal advice. 

III    The 2020 Morgan Lewis documents

190    The final category concerned Items 32, 34, 160 and 197 to 199. The documents related to advice sought from Morgan Lewis about Credit Suisse’s investments in GCUK supply chain finance products, including the programme referred to as the Hoffman programme. The communications included questions sent to GCUK, responses supplying information and documents, and the later transmission of a Morgan Lewis report to GCUK for comment. 

191    By the conclusion of the argument, the position in relation to this category had been refined. IAL did not dispute that the Morgan Lewis advice itself could attract legal professional privilege, but the substantial controversy was waiver. 

192    Items 32, 34 and 160 were relied upon by Credit Suisse as examples of communications made to obtain information for Morgan Lewis. Item 32 recorded exchanges between Credit Suisse personnel and a Mr Jesensky of GCUK concerning the Hoffman programme, with repeated references to Morgan Lewis. Item 34 contained questions said to have been drafted by Morgan Lewis or Credit Suisse’s general counsel and GCUK’s answers to them. Item 160 involved a request for documents following a call with Morgan Lewis. Credit Suisse submitted that the nature of the information sought, the references to Morgan Lewis and the sequence of the communications made their purpose plain: information was being gathered from GCUK so that Morgan Lewis could provide legal advice. 

193    IAL accepted that information was being sought, but submitted that this did not answer the waiver question. The substance of the legal inquiry had been disclosed to GCUK, and there was no evidence that GCUK received the questions or the associated legal analysis under any obligation of confidence. The fact that a solicitor drafted questions to be put to a commercial counterparty did not, without more, render either the questions or the answers privileged. 

194    Items 197 to 199 raised a distinct issue. Item 197 was an email forwarding the Morgan Lewis report to GCUK and seeking comment; Items 198 and 199 were the attachments to that email. Credit Suisse contended that the transmission was unauthorised or inadvertent and that steps were subsequently taken to recall or delete the material. IAL disputed that characterisation, submitting that the contemporaneous communications suggested a deliberate transmission followed by a change of mind rather than an accidental disclosure. 

195    During oral argument, Mr Finch placed reliance upon the “recall” of the report. He submitted that Credit Suisse’s insistence that the disclosure was mistaken implicitly acknowledged that sending the full report to GCUK was inconsistent with maintaining privilege. If GCUK were truly within the confidential relationship upon which Credit Suisse otherwise relied, there would have been no need to demand the deletion of the document. 

196    Credit Suisse answered that the argument treated all communications with GCUK as though they were indistinguishable. A party may disclose selected information for a confined purpose without authorising the transmission of the complete advice. The fact that Credit Suisse sought to recall the full Morgan Lewis report did not demonstrate that every other communication with GCUK was not confidential. 

197    Both parties invited me to inspect the disputed documents, together with the surrounding communications. As the argument developed, it became increasingly apparent that the questions concerning dominant purpose and waiver were closely related (although, of course, analytically distinct). The documents were said by Credit Suisse to establish both the legal purpose for which the communications were made and the confined, confidential setting in which information was obtained from GCUK. IAL relied upon the same documents to contend that legal advice had been deployed in communications with a commercial counterparty without any demonstrated obligation of confidence. 

E.3     Consideration

198    I have, for my manifold sins, inspected each of the sample documents, including the unredacted versions of the communications and, where necessary, the surrounding email chains and contextual documents to which the parties directed attention. Having done so, I am comfortably satisfied that the claims for legal professional privilege have been established and that the conduct relied upon by IAL did not amount to waiver. 

199    I accept that the evidence adduced in support of the claims was far from ideal. Mr Lynch was not a participant in the communications, and his evidence was necessarily based upon his review of the documentary record. As I have noted, there was no evidence from the Credit Suisse personnel who originally sought the advice or from the Linklaters and Morgan Lewis lawyers who provided it. Mr Finch was therefore correct to submit that the Court should approach the claims with care and should not treat general assertions as a substitute for proof of the purpose of the communications. 

200    But the purpose for which a communication was brought into existence is determined objectively, having regard to all the circumstances. The evidence is not confined to Mr Lynch’s characterisation of the documents. It includes the unredacted communications themselves, the underlying legal memoranda, the sequence in which drafts were prepared and circulated, the questions posed by the solicitors or their clients, the responses supplied by GCUK, and the use subsequently made of that material in the process by which the advice was developed and finalised. 

201    This is not a case where the Court is asked to infer a legal purpose merely because a solicitor appears somewhere in an email chain. The documents disclose identifiable retainers, express requests for advice upon specific legal questions, the preparation of successive drafts of legal memoranda, requests for documents and information required to complete those memoranda, responses to those requests, and internal communications reproducing or discussing the advice. Their sequence and contents provide a coherent account of the purpose for which they were created.

I    The relationship between Credit Suisse and GCUK

202    Before turning to the three categories, it is necessary to identify the particular relationship between Credit Suisse and GCUK in which the communications occurred. IAL correctly emphasised that they were sophisticated commercial counterparties. The Credit Suisse funds acquired notes originated through structures designed and implemented by GCUK. GCUK had an obvious commercial interest in attracting and retaining Credit Suisse investment, while Credit Suisse had its own interest in satisfying itself about the legal and commercial characteristics of the products it was acquiring. 

203    Their interests were not invariably congruent. The documents reveal instances in which Credit Suisse questioned the information it had been given and instances in which GCUK challenged the analysis undertaken by Credit Suisse’s lawyers. IAL relied particularly upon Mr Greensill’s observation that Credit Suisse’s lawyers had made errors which GCUK would correct. It submitted that the communications therefore involved counterparties advancing their individual commercial interests, rather than participants in a confidential process directed to obtaining legal advice. 

204    The difficulty with that submission is that it seeks to characterise the particular communications solely by reference to the parties’ broader commercial relationship. The fact that the parties were counterparties does not answer the question whether, in relation to a particular communication, GCUK was being asked to provide information required to enable Credit Suisse to obtain legal advice. 

205    The Credit Suisse funds acquired the notes but did not design the underlying financing transactions or negotiate the associated insurance. Much of the information necessary to understand the legal character and operation of the programmes was therefore held by GCUK and was not independently available to Credit Suisse. 

206    This was not information unimportant to the subjects upon which advice was sought. The 2016 advice concerned the legal eligibility and characterisation of GCUK products in which Credit Suisse was contemplating investment. The 2018 advice concerned the nature and operation of GCUK’s multi-obligor programmes. The Morgan Lewis advice concerned Credit Suisse’s investments in GCUK supply chain finance products and the associated insurance arrangements. Each exercise required the solicitors to understand structures which GCUK had administered. 

207    In those circumstances, it is understandable why Credit Suisse would ask GCUK to explain the arrangements and correct factual assumptions appearing in draft advice. The contemporaneous communications in which GCUK personnel offered to “assist and support” Credit Suisse are consistent with that function and illuminate the capacity in which GCUK apparently participated. 

208    Nor does the fact that GCUK sometimes challenged the solicitors’ analysis compel a different conclusion. A person asked to verify the factual premises of draft advice may contend that the analysis rests upon an error, but that does not mean its participation was unrelated to the process of obtaining advice. 

209    It is therefore necessary to distinguish between the parties’ general commercial relationship and the purpose of the particular communications. GCUK was a commercial counterparty, but in the communications now in dispute it also performed the function of supplying information which Credit Suisse and its solicitors needed to complete a legal analysis of the products and arrangements for which GCUK was responsible. 

II    The 2016 Linklaters documents

210    The 2016 category is represented by Item 58. The underlying memorandum concerned the potential investment by Credit Suisse funds in GCUK financial products and, more particularly, the legal eligibility and characterisation of those products. Linklaters prepared three drafts before finalising the advice on 14 September 2016. The claims are confined to parts of three emails which disclose the substance of the advice or comments upon its conclusions and analysis. 

211    Having inspected the memorandum and the redacted passages, I am satisfied that the underlying document was brought into existence for the dominant purpose of providing legal advice. It is not a merely descriptive commercial report prepared by solicitors, but discloses a legal analysis of the proposed investment structure and the legal eligibility of the notes. The passages redacted from Item 58 either communicate the substance of that analysis or record comments, which would reveal the conclusions contained in successive drafts. 

212    The fact that the advice was sought to inform a commercial investment decision is neither here nor there. Legal advice is commonly obtained so that a client may make an informed commercial decision. The commercial importance of the advice does not, by itself, establish that the communication was brought into existence for a commercial purpose which dominated a legal one. 

213    As I have said, the more substantial challenge concerns waiver. The first draft, subsequent drafts and the final memorandum were deliberately provided to Mr Greensill and Mr Solo. The covering communications did not contain an express contractual restriction upon further use or dissemination. IAL submitted that the memorandum was thereby deployed as part of the commercial process by which Credit Suisse negotiated its participation in GCUK’s financing programmes. 

214    The disclosure was deliberate, but that fact does not establish that confidentiality was abandoned. The advice concerned products designed and originated by GCUK, which had provided source material about those products and was the obvious entity from which clarification or correction of the factual description could be obtained. The memorandum and the passages revealing its substance were supplied in that setting. 

215    The surrounding correspondence does not suggest that Credit Suisse provided its advice so that GCUK might deploy it against Credit Suisse or use it independently for purposes unrelated to the proposed investment. The communications were confined to a small number of persons directly involved in the relevant products and legal analysis and GCUK was asked to provide assistance and support in connexion with that analysis. 

216    It is true that Credit Suisse did not accompany each communication with an express statement that the material was confidential and could be used only for a stated purpose. But an obligation of confidence may arise from the circumstances in which information is communicated and a reasonable recipient in GCUK’s position would have understood that it was receiving draft or final legal advice obtained by Credit Suisse concerning a proposed investment and that the advice was supplied so that GCUK could respond to the matters under consideration. 

217    GCUK accepted the advice in circumstances which objectively confined its use to the purpose for which it had been provided. It could comment upon the description of its products and correct factual errors to assist Credit Suisse to understand the arrangements but was not thereby given an unrestricted entitlement to use or disseminate the advice. 

218    Nor is it necessary to find that Credit Suisse and GCUK shared a common legal interest. They plainly had separate commercial interests. But, at the risk of repetition, the relevant question is whether Credit Suisse’s disclosure was objectively inconsistent with maintaining the confidentiality of the advice. For the reasons given, it was not.

III    The 2018 Linklaters documents

219    The position is particularly clear in relation to much of the 2018 material. On 4 December 2018, Mr Lukas Haas of Credit Suisse Asset Management expressly requested that Linklaters provide a legal opinion concerning GCUK’s multi-obligor programmes. Mr Ludwig Sels and Mr John Whelan of GCUK were copied so that they could provide information and documents concerning the programmes. Linklaters then sent the first draft to Credit Suisse personnel alone. The draft was subsequently forwarded to GCUK with queries, followed by GCUK’s holding response and then a marked-up draft answering those queries. 

220    That sequence reveals the purpose of the communications. The solicitors were asked to advise, prepared a draft on the information initially available and required further factual assistance. Credit Suisse then sought that assistance from the party which had designed and administered the programmes. GCUK’s responses were fed back into the process by which Linklaters developed and finalised its advice. 

221    Items 3 and 4 exemplify that process. Item 3 contains the original request to Linklaters, the first draft supplied to Credit Suisse, the forwarding of that draft to GCUK accompanied by specific queries, and GCUK’s response. Item 4 is GCUK’s marked-up version of the draft. It would be artificial to isolate the fact that GCUK commented upon the memorandum from the reason it was asked to do so. The draft was sent so that GCUK could answer questions and identify factual errors concerning programmes within its peculiar knowledge. The first three emails over which privilege is claimed in Item 106 are duplicates of the first three emails in Item 3 and attract the same conclusion.

222    The communications were steps in the process by which Credit Suisse sought to obtain informed legal advice, and I am satisfied they were created for the dominant purpose of enabling that advice to be completed. 

223    Items 5, 10 and 13 provide further confirmation. The disputed parts of Item 5 comprise communications between Credit Suisse and Linklaters providing documents, giving instructions, and transmitting revised drafts. The relevant communications in Item 10 contain questions prepared for Linklaters and an extract from the draft advice. The disputed part of Item 13 records a telephone discussion with the Linklaters solicitor and reveals the substance of advice and instructions. Upon inspection, their legal purpose is evident. 

224    Items 142 and 189 require separate consideration because they contain direct communications between Linklaters and GCUK in which no Credit Suisse employee was copied. That does not deprive them of privilege. Credit Suisse had provided the relevant GCUK contact details and authorised Linklaters to obtain from GCUK the information and documents needed to complete the advice. The communications themselves are directed to that task. 

225    The legal purpose of those communications does not depend upon the client being copied to each email. What matters is that the communication was authorised by the client as part of the process by which its solicitor obtained factual material necessary to advise it. Items 142 and 189 consist of requests for information and documents and the responses to those requests. Their objective purpose is apparent from their contents and context. 

226    A reasonable person in GCUK’s position would have understood that the communications and any legal analysis they revealed were to be used only in connexion with that exercise. 

227    Item 66 presents IAL’s waiver case at its highest. It is a copy of the third draft of the Linklaters memo sent in advance of a meeting involving Credit Suisse and GCUK, with Marsh also expected to participate. The host email requested that the documents be forwarded to all relevant persons on GCUK’s side and to Marsh.

228    Taken in isolation, that expression suggests a relatively broad authority to circulate. It must, however, be read in the context of the proposed meeting and the functions of the contemplated recipients. The memorandum was to be discussed at a meeting concerning the operation of the multi-obligor programmes and the associated insurance arrangements. GCUK was responsible for the programmes. 

229    The reference to “all relevant people” was not an invitation to distribute the memorandum willy-nilly. It confined circulation by reference to function: those persons on the GCUK side involved in the relevant programmes and, potentially, Marsh in its capacity as the broker able to explain the insurance arrangements. The adjective “relevant” is telling. It identifies a restricted class connected with the subject of the proposed meeting.

230    To the extent that the draft was authorised to be provided to Marsh, that was not an unrelated disclosure. Marsh’s involvement was said to be necessary because it had arranged or facilitated the insurance whose structure and operation formed part of the matters under examination. The contemplated disclosure was therefore for the same limited purpose as the disclosure to GCUK: enabling the factual assumptions and legal analysis to be tested before the advice was finalised. 

231    The available evidence also indicates that the draft was not in fact forwarded to Marsh. Although that fact provides additional support for Credit Suisse’s position, the conclusion does not depend upon it. Even the authority contemplated by the host email was confined to persons participating in the process for which the draft had been circulated. 

232    IAL submitted that Credit Suisse could have obtained the relevant documents and information without disclosing any part of the advice. That may have been possible in some instances. But the fact that another, less revealing method of inquiry might theoretically have been adopted does not establish waiver. The question is whether the disclosure made was objectively inconsistent with maintaining confidentiality. Here, the drafts and extracts were disclosed to identified persons and, as I have explained, those uses were consistent with, and ancillary to, the continuing legal advisory process.

233    I also reject the proposition that GCUK’s separate commercial interests made an obligation of confidence impossible. Parties with distinct commercial interests may nevertheless communicate information upon a confidential and limited basis.

234    There is a material distinction between being entitled to use information for the purpose for which it was supplied and being free to deploy it generally. GCUK could read the draft, circulate it to personnel whose knowledge was required, formulate corrections and respond to Credit Suisse or Linklaters. That permitted use did not carry an entitlement to publish the advice, use it in an unrelated dispute or treat it as having lost its confidential character.

235    It is that objectively ascertainable limitation upon use which answers the waiver case. The communications were not accompanied in every instance by an express confidentiality stipulation, but the confidential nature of draft legal advice, the limited participants, the specific questions requiring GCUK’s assistance, and the transmission of the responses back into the legal advisory process made the limitation clear. 

IV    The 2020 Morgan Lewis documents

236    The Morgan Lewis material arose in a later factual setting but reveals the same essential pattern. In September and November 2020, Ms Trumpp, the General Counsel of CSAM, requested that Morgan Lewis provide legal advice concerning Credit Suisse’s investments in GCUK supply chain finance products, including the Hoffman programme. Morgan Lewis provided memoranda on 2 and 18 February 2021. Credit Suisse communicated with GCUK to obtain information required for that advice. 

237    Items 32, 34 and 160 are communications by which Credit Suisse sought information and documents from GCUK for the Morgan Lewis review. Item 32 contains exchanges concerning the Hoffman programme and repeatedly refers to “ML”. Item 34 contains questions prepared by Morgan Lewis or Credit Suisse’s general counsel and GCUK’s answers. Item 160 contains a request for documents following a call with Morgan Lewis. 

238    By the conclusion of the hearing, IAL did not dispute that the Morgan Lewis advice itself could attract privilege. Again, its substantial contention was that the questions and associated communications disclosed the subject or direction of the legal inquiry to GCUK and that Credit Suisse had not established that those disclosures occurred under an obligation of confidence. 

239    The objective character of the documents does not support that contention. Their nature, sequence and express references to Morgan Lewis demonstrate that they were formulated to obtain information needed for the solicitors’ review. The information and documents were sought from GCUK because it had arranged or administered the structures and possessed knowledge not held by Credit Suisse. 

240    The fact that a question reveals something about the subject upon which legal advice is being sought does not mean that asking it of the person capable of answering it waives privilege. Where, as here, the question is asked for the dominant purpose of obtaining legal advice and in circumstances which objectively limit the recipient’s use of it to that process, the communication retains its confidential character. 

241    Again, the parties’ commercial relationship does not answer the question. The communications reveal a process of inquiry, response and further inquiry directed to the Morgan Lewis review. They do not reveal Credit Suisse deploying the advice against GCUK or supplying it so that GCUK might make independent use of it. 

242    Items 197 to 199 stand apart because they concern the transmission of the Morgan Lewis report itself. Item 197 is the covering email and Items 198 and 199 are the attachments. Credit Suisse’s evidence was that Mr Asche was not authorised to disclose the documents to GCUK. The report was sent on 4 February 2021 and, on 11 February, Mr Asche asked Mr Jesensky to delete it. Mr Jesensky responded in terms indicating that GCUK would comply, although he also referred to comments which GCUK’s lawyers had intended to discuss. 

243    IAL submitted that the contemporaneous sequence was as consistent with a deliberate transmission followed by a change of mind as it was with an unauthorised disclosure. It also relied upon the fact that Credit Suisse continued to seek GCUK’s factual input after the request for deletion. 

244    The evidence concerning the precise authority possessed by Mr Asche is indirect and the contemporaneous language is not entirely free from ambiguity. However, considered as a whole, the better conclusion is that transmission of the complete report exceeded the scope of what Credit Suisse intended GCUK to receive. 

245    The request for deletion did not terminate GCUK’s role in providing information or commenting upon matters relevant to the Morgan Lewis review. Rather, it drew a line in that GCUK could continue to answer questions and provide factual material, but it was not entitled to retain the complete written advice. 

246    The response acknowledging the request for deletion is consistent with GCUK understanding that limitation. There is no evidence that GCUK asserted a right to retain the report, disseminated it further or used it for a purpose adverse to Credit Suisse. 

247    I do not regard the recall as inconsistent with Credit Suisse’s case concerning the earlier communications. 

248    The request for deletion therefore does not amount to an acknowledgement that all communications with GCUK occurred outside a confidential relationship. It demonstrates that the relationship operated within limits and that Credit Suisse acted when one communication exceeded what had been authorised. 

249    Nor does the continuation of discussions after the request for deletion establish waiver. GCUK’s continued provision of information was consistent with the function it had performed throughout the review. There is an intelligible distinction between obtaining GCUK’s response to questions or factual propositions and surrendering control over the complete Morgan Lewis report. 

250    In those circumstances, the conduct comprising the transmission of Item 197 and its attachments, Items 198 and 199, followed by the subsequent request for deletion and GCUK’s apparent acceptance of that request, was not objectively inconsistent with Credit Suisse maintaining confidentiality in the Morgan Lewis advice.

V    Conclusion

251    Standing back from the individual documents, the central difficulty with IAL’s case is that it treats disclosure of legal analysis to a commercial counterparty as substantially determinative of waiver.

252    That approach gives insufficient attention to the function performed by GCUK and to the purpose and circumstances of each disclosure. 

253    It is neither necessary nor helpful to determine whether GCUK fell within some fixed “privileged circle”. The metaphor risks obscuring the real inquiries. Those inquiries are whether each communication was made for the dominant purpose of obtaining legal advice and, where privileged advice was disclosed to GCUK or Marsh, whether that disclosure was objectively inconsistent with maintaining its confidentiality.

254    I am therefore satisfied that Credit Suisse and the UBS cross-respondents have established the claims for legal professional privilege maintained over the documents remaining in dispute and that IAL has not established waiver. Application C will be dismissed. 

F     APPLICATION D: MARSH/CREDIT SUISSE DISCOVERY APPLICATIONS

F.1     The application

255    As noted above, this application arises in the Credit Suisse Global Matter (NSD 169 of 2023). It concerns competing applications by Marsh and Credit Suisse relating to the adequacy of discovery, including whether reasonable searches have been undertaken and whether further discovery should be ordered. By orders made on 16 July 2026, issues arising in respect of those disputes were referred to Mr Edward Cowpe as referee pursuant to s 54A of the FCA Act. Mr Cowpe has, with his customary promptitude, since furnished a report.

256    The applications differed in character from the privilege applications dealt with earlier in these reasons. They were directed principally to whether further discovery should be ordered notwithstanding the requirements of FCR 20.14, including whether the documents sought were directly relevant to the issues raised by the pleadings and whether any further searches sought were reasonable in all the circumstances. Resolution of those issues required detailed consideration of the searches undertaken by the parties, the repositories searched, the likely location of responsive documents and the burden associated with any additional searches. 

257    During the hearing on 16 July 2026, I formed the view that those issues were particularly well suited to determination by reference. They required detailed factual investigation and evaluative judgments concerning discovery processes which were unlikely to be assisted by attempting to resolve the disputes solely through competing affidavit evidence and oral submissions. After hearing the parties, and with their agreement as to the identity of the referee, I ordered the reference. 

F.2     Disposition

258    There is no issue as to whether the report of the referee should be adopted. 

259    It is sufficient to note that Mr Cowpe concluded that Credit Suisse’s application concerning the MGA discovery should be refused, that Marsh’s application concerning the SCFF Offer documents should also be refused, and that Marsh’s application requiring Credit Suisse to undertake the proposed Investigations Search over the identified custodial mailboxes should be granted.

260    I will adopt the report pursuant to s 54A(3) of the FCA Act.

261    Only one issue remains outstanding, and it concerns timing rather than substance. Mr Cowpe reached the conclusion, which I have adopted, that for Credit Suisse to comply with its obligation to undertake reasonable searches, further work is required in respect of the identified custodial mailboxes. It follows that additional searches must now be undertaken and any responsive documents discovered in accordance with the conclusions reached by the referee.

262    I was provided today with an affidavit of Ms Rebecca Spigelman explaining the work said to be necessary before those searches can be completed. The affidavit details several practical steps said to be required, including obtaining internal authority to undertake aspects of the work and obtaining advice from Swiss and Luxembourg lawyers concerning matters arising in connexion with the searches. I accept that those matters present practical challenges and that the work cannot necessarily be completed instantaneously.

263    That said, the starting point must be that this work ought already to have been undertaken in order for Credit Suisse to have complied with its discovery obligations. The necessity for these additional searches is not the product of some new obligation imposed by these reasons. Rather, it reflects the conclusion, now adopted by the Court, that the searches previously undertaken were insufficient to satisfy the obligation to conduct reasonable searches.

264    In those circumstances, the additional work must now be undertaken with celerity. I do not regard it as acceptable that the further discovery should only be completed at a point after the tender lists are required to be prepared. Such a course would unnecessarily complicate the orderly preparation for trial and create a real risk of disruption to the conduct of the proceeding.

265    I will therefore direct that the additional searches and any consequential discovery be completed by 14 August 2026. That timetable should provide sufficient time for any newly discovered material to be inspected and, if necessary, incorporated into the parties’ tender lists before they are finalised. I recognise that unforeseen practical difficulties may arise notwithstanding the best endeavours of those undertaking the work. Accordingly, the orders will reserve liberty to apply should genuinely insuperable difficulties emerge in complying with that timetable. However, absent such circumstances, the work should proceed forthwith and the date I have fixed should be met.

266    Orders will be made giving effect to the referee’s conclusions. 

G    APPLICATION E: CREDIT SUISSE APPLICATION RE PRODUCTION BY THE BCC/TM PARTIES

G.1     The application

267    As noted above, Application E also arises in the Credit Suisse Global Matter (NSD 169 of 2023). Credit Suisse seeks production of documents which the BCC/TM Parties withheld, or produced in redacted form, on claims of legal professional privilege. The dispute concerned documents identified in Tab 3 of the spreadsheet provided by Gilbert + Tobin to Kennedys on 13 July 2026. 

268    Credit Suisse and the UBS cross-respondents were represented by Ms Campbell. The BCC/TM Parties were represented by Ms Granger. 

269    The application emerged late. Credit Suisse had challenged privilege claims made over a much larger body of documents, but the parties had not yet completed the process of identifying the documents and issues that could realistically be resolved before trial. During the hearing, it became apparent that a distinction had to be drawn between newly raised challenges which would require the BCC/TM Parties to adduce further evidence, and a confined group of documents in respect of which the dispute had sufficiently crystallised and the available evidence could be examined without unfairness. 

270    The latter dispute concerned the documents in Tab 3. By orders made on 16 July 2026, the Court referred to Mr Cowpe the question whether, as part of their discovery obligations under FCR 20.14, the BCC/TM Parties ought to have produced those documents without claims or redactions for legal professional privilege.

271    Although Tab 3 listed 14 documents, seven were duplicates. The reference therefore concerned seven unique email chains exchanged between 20 July 2020 and 12 August 2021. They comprised communications internal to the BCC/TM Parties, communications between the BCC/TM Parties and IAL, and communications involving their respective solicitors. The documents were: 

(1)    “FW: NMC”, dated 20 July 2020;

(2)    “Re: BCC – Claims”, the last email in which was dated 4 August 2020;

(3)    “Docs from Greensill”, dated 20 October 2020;

(4)    “FW: Greensill”, the last email in which was dated 23 October 2020;

(5)    “Re: Cancellation Notice”, the last email in which was dated 12 February 2021;

(6)    “FW: Tokio Marine and Insurance Australia Limited and Greensill Capital”, the last email in which was dated 19 February 2021; and

(7)    “Re: Trade Credit Unexpired Policies”, the last email in which was dated 12 August 2021. 

272    Credit Suisse contended before the referee that the BCC/TM Parties had failed to establish legal professional privilege in respect of the documents. It further disputed that communications shared with IAL were protected by common interest privilege and contended that, if privilege had originally attached, it had been waived by disclosure to IAL. 

273    The reference accordingly required consideration of three related questions: whether the documents were created for the dominant purpose required to establish legal professional privilege; whether any disclosure to IAL occurred in circumstances sustaining common interest privilege; and, in the case of certain communications, whether without prejudice privilege had been established. Mr Cowpe furnished his report on 24 July 2026. 

G.2     Disposition

274    Sensibly, there is no real dispute as to the adoption of the report, save in relation to Document 1, “FW: NMC”. Mr Cowpe concluded that the BCC/TM Parties had not established that Document 1 was protected and recommended that it be produced without redaction.

275    The report addresses the evidence relied upon by the BCC/TM Parties, the objective character of each communication and the circumstances in which material was shared with IAL. It also deals expressly with Credit Suisse’s contention that the interests of IAL and the BCC/TM Parties had diverged by late 2020.

276    In relation to Document 1, it is apparent that Mr Cowpe was provided with a compendium of documents and detailed competing contentions. He sensibly sought clarification of matters arising from the material supplied to him, and the parties were afforded the opportunity to provide such further material and explanation as they considered necessary for the performance of the reference. There was, therefore, ample opportunity for the BCC/TM Parties to place before Mr Cowpe all material upon which they wished to rely. Mr Cowpe thereafter plainly directed himself to determining the claims concerning Document 1 upon the basis of the material which had been provided to him.

277    At the hearing today, I received evidence from Mr Nicholas James Josey, a Special Counsel employed by Kennedys, the solicitors for the BCC/TM Parties. Mr Josey explained that, through inadvertence in the preparation of the inspection bundle provided to the referee, an attachment referred to on the face of Document 1 had not been included. It was submitted that the attachment supplies additional context which may bear upon the proper characterisation of Document 1 and, in particular, upon whether it was brought into existence for the dominant purpose of obtaining or giving legal advice. The BCC/TM Parties therefore sought adoption of the report save in respect of the conclusions concerning Document 1, with that aspect of the reference to be remitted to Mr Cowpe for further consideration after provision of the omitted attachment.

278    Credit Suisse submitted that the reference should not be treated as a preliminary rehearsal in which an unsuccessful party could, after receiving the report, supplement the evidentiary record and seek a second determination. It emphasised that Mr Cowpe had found that legal professional privilege had not been established; that common interest privilege could not apply in the absence of underlying legal professional privilege and, in any event, that confidence had not been proved; and that without prejudice privilege had not been established.

279    There is considerable force in those submissions. The omission was not attributable to any error by Mr Cowpe. He determined the question referred to him by reference to the material which the parties chose to provide. Nor was the process lacking in opportunity. The parties had every occasion to place before him the documents and submissions upon which they wished to rely, and the referee followed up matters requiring clarification. Ordinarily, the purpose and utility of a reference would be substantially undermined if a party were permitted, after an adverse conclusion, to supplement the material which it could and should have supplied during the inquiry.

280    But the matter does not end there. The overarching purpose requires not merely that disputes be resolved efficiently and inexpensively, but that they be resolved justly. Although the Court should not lightly permit a party to reopen a question referred to a referee by relying upon material which was available but omitted, neither should the adoption process become an instrument for preserving a conclusion known to have been reached upon an incomplete documentary basis where the omission can be corrected promptly and without disproportionate disruption.

281    The omission was an unfortunate mistake. Such mistakes occur notwithstanding the diligence of competent practitioners. There is no suggestion that the attachment was deliberately withheld or that the BCC/TM Parties sought to obtain some tactical advantage by withholding it from the referee.

282    In my view, the preferable course is to require a short supplementary report. That course does not involve rejecting the report or conducting a rehearing before the Court. Nor does it give the BCC/TM Parties an unrestricted opportunity to reformulate their case or adduce further material generally. The attachment omitted from the inspection bundle should be provided to Mr Cowpe, who should then report whether, having regard to that additional material, he adheres to or varies his conclusions concerning Document 1.

283    I recognise that the omitted attachment may have no bearing upon Mr Cowpe’s reasoning and that his ultimate recommendation may remain unchanged. That is a matter for him.

284    Subject to that confined qualification, the report will be adopted. Mr Cowpe’s conclusions concerning Documents 2 to 7 are unaffected by the present issue: Documents 2, 3, 4 and 7 were found to be protected from production, while Documents 5 and 6 were found not to be protected and were to be produced. No basis has been demonstrated for declining to adopt those conclusions. The conclusion concerning Document 1 will be reserved pending receipt of Mr Cowpe’s supplementary report.

285    The costs occasioned by the omission and the supplementary reference should not be borne by the BCC/TM Parties or any other party. They should be borne by the solicitors. This is not said by way of criticism extending beyond the particular mistake which occurred. Practitioners dealing with large and complex documentary disputes work under considerable pressure, and mistakes may occur despite conscientious efforts. But the omission has necessitated further work by the referee, the parties and the Court which would otherwise have been unnecessary. It is therefore appropriate that the solicitors responsible for preparing the incomplete inspection bundle bear the costs occasioned by the supplementary reference. 

H     APPLICATION F: CREDIT SUISSE APPLICATION FOR FURTHER PRODUCTION

H.1     The application

286    As noted above, this application also arises in the Credit Suisse Global Matter (NSD 169 of 2023). It concerns the balance of Credit Suisse’s application seeking further production by the BCC/TM Parties of documents over which claims for legal professional privilege and without prejudice privilege have been maintained. The remaining categories of documents were identified in the spreadsheet exchanged between the parties shortly before the hearing. The present application concerns the balance of the disputed documents, namely those identified in Tabs 1, 2, 4 and 5 of the spreadsheet. Those categories comprise claims variously based upon without prejudice privilege and legal professional privilege and, unlike the Tab 3 documents, remained for determination by the Court. 

287    During the hearing on 16 July 2026, it became apparent that the volume of documents falling within those remaining categories was substantial. Tab 1 comprised approximately 650 documents, Tab 2 approximately 750 documents, Tab 4 approximately 170 documents and Tab 5 approximately 63 documents. Plainly, it was neither practical nor proportionate to determine privilege document-by-document across that volume during the interlocutory hearing. 

288    The parties therefore adopted a more confined course. By agreement, they were directed to confer and identify representative documents capable of resolving the issues of principle said to arise in each category. The purpose of that exercise was to permit the Court to determine the privilege issues by reference to representative examples rather than undertaking an exhaustive review of every disputed communication. Orders were made requiring the parties to identify those representative documents and to file supplementary submissions directed to them. 

H.2     The course now proposed

289    Although I had anticipated determining Application F by inspecting a confined number of representative documents selected from the remaining categories, the parties have sensibly agreed upon a different and more efficient course. The balance of the disputed claims, to the extent they have not already been resolved by agreement or by the determinations made in these reasons, will be again referred to Mr Cowpe.

290    The reference will require Mr Cowpe to consider the remaining documents, the claims maintained in respect of them and the parties’ competing contentions, and to report upon whether the documents should be produced, whether any redactions should be removed and any related question falling within the terms of the reference.

291    It is to be hoped that, once Mr Cowpe has completed the reference and furnished his report, the parties will be able to agree upon its adoption and the consequential orders necessary to give effect to it. If agreement cannot be reached, the matter may be relisted before me and any contested application concerning the adoption, variation or rejection of the report can be dealt with promptly.

292    Accordingly, no present determination of the individual privilege claims the subject of Application F is required. Orders will be made referring the outstanding questions to Mr Cowpe.

I     CONCLUSION AND ORDERS

293    As I noted in the Introduction, these applications were allocated to me for the purpose of urgently resolving the outstanding disputes concerning discovery, production and inspection. I have attempted to deal comprehensively with those disputes so that the docket Judge is not burdened by further interlocutory controversies of this kind and the trial may proceed upon a settled documentary footing. 

294    It is regrettable that many of these disputes emerged or were brought to a point at which judicial determination was sought, only at the heel of the hunt. Although, as I have indicated, their resolution has necessarily occurred under considerable time pressure and this has been possible only because the parties have provided detailed and comprehensive written submissions, I should record, however, that when the applications first came before me, the volume and organisation of the material provided to the Court were oppressive.

295    The task of identifying the documents relevant to the individual applications, understanding the relationship between the various privilege claims and navigating the extensive affidavit and documentary material was difficult. Mercifully, before the resumed hearing, the parties cooperated in preparing a greatly improved and useful court book organised by reference to an agreed agenda. That work materially assisted and made it possible to deal with the applications in the manner and within the time available. I am grateful to the parties and their legal representatives for the cooperative way in which that task was belatedly undertaken. 

296    Even allowing for the importance and complexity of these proceedings, I have grave misgivings as to whether the costs incurred in advancing and resisting these disputes concerning discovery, production and inspection are proportionate to their likely significance in the ultimate disposition of the proceedings. I recognise, of course, that I have not heard (and will not hear) the trial and may therefore underestimate the significance which some of the documents will ultimately assume. But experience in this and other large commercial proceedings suggests that interlocutory disputes concerning documentary production can acquire a life and momentum of their own, with costs vastly disproportionate to the forensic value of the documents ultimately produced. 

297    That is not a satisfactory state of affairs. The Court and the parties are required to conduct civil proceedings consistently with the overarching purpose identified in s 37M of the FCA Act, including the resolution of disputes according to law as quickly, inexpensively and efficiently as possible, the efficient use of judicial and administrative resources, and the resolution of disputes at a cost proportionate to their importance and complexity. Those requirements apply as much to discovery and production disputes as they do to the trial itself. 

298    There must be a better and more disciplined means of managing discovery in large commercial litigation. In my view, the more I see of disputes like this, the more I think a course warranting more frequent consideration is the early appointment of an appropriately experienced referee who can act, in substance, as a Discovery Master throughout the interlocutory life of the proceeding. Such a referee may supervise the formulation and implementation of search methodologies, resolve practical disputes as they arise and report promptly to the Court, rather than being engaged only after the parties’ positions have hardened and substantial costs have already been incurred.

299    To some extent, I attempted to put such a process in place in the present proceedings. The current and earlier references to Mr Cowpe in this matter demonstrate the utility of the procedure. He was able, within a compressed period, to investigate the relevant questions, inspect the documents and search processes, and furnish careful reports which enabled the Court to resolve disputes that might otherwise have occupied substantial hearing time. The procedure worked well. Its success reinforces the desirability, in an appropriate case, of deploying a referee earlier and maintaining the reference throughout the whole discovery process. 

300    For the reasons given above, the applications will be disposed of in accordance with the orders made.

301    After delivering these reasons, I heard the parties as to costs. All questions as to costs were resolved by consent or otherwise disposed of in the orders made.

302    The parties should now address any remaining issues concerning discovery promptly, failing which they should hold their peace. No party raised any further issue, save that IAL indicated that, if granted leave to amend to raise a loss and mitigation argument, it may seek further discovery. That is a matter upon which the docket Judge has not ruled, and I will leave it to him.

Associate:

Dated: 31 July 2026

SCHEDULE OF PARTIES