Tokio BCC Trade Credit Pty Ltd v The Secretary of State for Business and Trade

This is my judgment on an application, dated 12 April 2024, made by BCC Trade Credit Pty Limited, Tokio Marine Management Australasia Pty Limited, and Tokio Marine & Nichido Fire Insurance Company Limited.

The application is made under CPR 5.4C( 2), CPR 32.12(2) and/or the court's inherent jurisdiction to obtain a copy of an affirmation made by Mr Ian Wilson on 6 March 2024 in support of the Secretary of State's claim under the Company Directors Disqualification Act 1986 to disqualify Mr Alexander Greensill from being concerned in the management of a company. The applicants do not seek inspection of the exhibits to the affirmation. Having looked at the court electronic file, those exhibits do not seem to have been uploaded but they apparently run to about 8,500 pages. The affirmation itself runs to 322 pages, plus a few schedules, and comprises 1,053 paragraphs. The statement of the matters that the Secretary of State relies upon as demonstrating Mr Greensill's unfitness to be concerned in the management of a company are set out in paragraphs 10 to 46. That statement is required by the Insolvent Companies (Disqualification of Unfit Directors) Proceedings Rules 1987, to which I shall turn in a moment. The applicants also seek permission to use the affirmation in proceedings currently before the Federal Court of Australia, to which the applicants are defendants.

The application now extends to a second affirmation of Mr Wilson, dated 24 June 2024, which makes amendments to the first. These are not amendments of any great significance in that the second affirmation corrects typographical and literal errors and exhibits documents that were intended to be exhibited to the first affirmation.

The application is supported by the evidence of Mr David Chadwick, the solicitor with conduct of the matter on the part of the applicants at Kennedys Law LLP. He has made two statements dated 12 April 2024, and 10 May 2024. The application is opposed by Mr Greensill, whose lawyer, Mr Ivan Pearce-Molland, made a statement dated 3 May 2024. The Secretary of State is neutral on the application though evidence has been put in by Ms Shevonne Keir, a senior lawyer at the Insolvency Service, who sets out some of the pre-action correspondence between Mr Greensill and the representatives of the Insolvency Service, both prior to the notice served under section 16 of the 1986 Act and afterwards, including the extensions of time afforded to Mr Greensill make representations to persuade the Secretary of State not to commence proceedings. The statement also seeks to rebut certain contentions that there is information in the affirmation of Mr Wilson that is confidential.

Judge Baister, sitting as an ICC judge in retirement, directed that the application be expedited. The application was therefore listed before me on 8 July 2024. That was shortly after I heard and gave a judgment on 28 June 2024 in a similar application made by the Financial Times. The neutral citation of that judgment is [2024] EWHC 1803 (Ch). In that application, I directed that the Financial Times should be able to obtain a copy of paragraphs 10 to 46 of the affirmation, which set out the allegations which the Secretary of State is required to particularise under rule 3(3) of the Insolvent Companies (Disqualification of Unfit Directors) Proceedings Rules 1987. I regarded the rule 3.3 statement as akin to a statement of case, which a non-party to proceedings is usually entitled to see. I rejected the Financial Times's application insofar as it sought access to the affirmation more generally. That application was made on a different basis to the instant application. The Financial Times wished to report on the nature of the Secretary of State's claim generally, having reported on Mr Greensill's affairs for some years.

The application that I have to deal with now arises from the fact that there are some ten claims proceeding in the Federal Court of Australia in relation to trade credit insurance policies issued by BCC Trade Credit and others as representative of Insurance Australia Limited. The applicants are pursuing a number of cross claims, including claims against Greensill Capital (UK) Limited, which is now in administration. That administration has been recognised in Australia and the administrators have given consent to the Australian proceedings being brought against the company, notwithstanding the administration. They have done so on the basis that the company would be released from the obligation to file pleadings or give disclosure of documents, although they have stated that they would not oppose an order for a limited form of disclosure of documents by category.

The Australian proceedings are defended by BCC Trade Credit in part on the basis of a contention that the policies were not validly entered into as a result of fraudulent non-disclosure and/or misrepresentation by Greensill Capital (UK) Limited and by Mr Greensill himself, among others. Like defences are being run by the Tokio companies. The defences annex a document referred to as “Annexure A”, which is common to each of the claims, particularises its fraud claims and leaves open the possibility of pleading further fraudulent disclosure or misrepresentation. It is to be noted that those claims seek recovery in the region of $7 billion AUD and there are other claims connected to Greensill Capital (UK) Limited in this jurisdiction and elsewhere.

The purpose for which the affirmation is sought is to frame the scope of disclosure in the Australian proceedings where that process continues to be referred to as “discovery”. As part of that process, questions of the form and scope of discovery were referred by the order of Justice Lee on 21 December 2023 to a court-appointed referee, Mr Edward Cowpe, a barrister qualified in Australia. Following Mr Cowpe's report, Justice Lee gave directions for submissions at a hearing to consider the form and scope of discovery. Particular questions are whether there should be standard, non-standard or hybrid discovery, what the scope of discovery should be and whether there should be discovery on the basis of particularised frauds or, as it is called, “general fraud discovery”. General fraud discovery is an order for disclosure of documents that tend to show fraud or dishonest conduct in relation to a commercial or financial transaction and would not be limited to the transactions particularised in Annexure A. More generally the applicants say the affirmation will indicate the extent of the material available to the administrators of the Greensill companies, who are taking a limited role in the Australian proceedings given the insolvency. The discovery hearing was initially listed in May of this year but has now been re-listed for 14 August 2024 as the result of the change of the docketed judge.

Both parties in this application have filed expert reports from barristers qualified in New South Wales who are familiar with the procedure of the Federal Court of Australia. Mr Greensill relied upon the report of Mr Phillip Sharp, while the applicants rely on that of Mr James Emmett SC. The experts are not wholly agreed on the relevance of the affirmation to the Australian proceedings, but they have produced a joint report in which there is a measure of agreement.

Where the experts do not agree is as to whether the affirmation will be relevant to the question of whether there should be standard or non-standard discovery. It may be relevant in that it shows the sort of information available to the administrators of Greensill and provided to the Secretary of State. Without having seen the affirmation, however, the experts...