Credit Suisse Virtuoso SICAV-SIF v Insurance Australia Limited

The relevant documents have been produced in redacted form pursuant to discovery orders in accordance with an ‘electronic discovery protocol’. The redactions have been made by the Credit Suisse Funds and by UBS AME, UBS FS and UBS AM (together, UBS), which are cross-respondents in proceeding NSD 169 of 2023. In these reasons, the Credit Suisse Funds and UBS are together referred to as Credit Suisse.

The redactions which have been applied to the documents are mostly labelled “CID” which is a reference to “customer identifying data”. The redactions were made because it was considered that the redacted information was required to be kept secret by the laws of Switzerland (“LOS”) and the laws of Luxembourg (“LOL”). Contraventions of the relevant foreign laws might result in criminal prosecution or civil liability.

The documents which have been redacted were collected by CSAM and UBS AM and stored in repositories held by UBS AG: CS [21]; Spigelman 2 at [21(a)], [26(a)]. Unredacted versions of those documents are currently stored across two electronic platforms located in Switzerland for the purposes of review, redaction and production in these proceedings.

Much evidence was given on this application with respect to the process by which the redactions were made. Many redactions were made before BCC/TM filed the interlocutory application the subject of these reasons. The process by which the redactions were made included:

After BCC/TM filed its interlocutory application, a “re-review” was conducted, covering all of the documents captured by the application: Spigelman 2 at [43]. This re-review involved two rounds of review by the foreign lawyers and a targeted quality control review by Australian lawyers: Spigelman 2 at [43] to [57].

After the “re-review”, the solicitors for Credit Suisse provided to the solicitors for BCC/TM “re-production” of 2,294 documents, 2,170 of which had been redacted: Josey 2 at [9(c)]. Credit Suisse also provided expert reports from Professor Yvan Jeanneret, as to Swiss law, and Ms Armel Waisse, as to Luxembourg law. These were dated 13 March 2026 and 12 March 2026 respectively.

Mr Josey, a solicitor for BCC/TM, reviewed approximately 5,000 of the 6,891 documents with LOS redactions and all 806 documents with LOL redactions over two weeks: Josey 2 at [11], [12], [27]. Mr Josey identified more than 400 documents affected by inconsistencies in redactions between different versions of documents or emails in a chain, describing some of those in his affidavit: Josey 2 at [14], [27]. These inconsistencies, as well as documents produced by GCUK, reveal that redactions have been applied to terms of obvious relevance to the proceedings. Only a subset of these documents were documents which responded directly to BCC/TM’s interlocutory application. The redactions are likely to hamper the orderly conduct of the trial.

As a result of Mr Josey’s identification of inconsistencies, the solicitors for Credit Suisse commenced a third process of review. That review was continuing at the time this interlocutory application was heard.

Orders for discovery are procedural and governed by the law of the forum, that is, Australian law: John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; 203 CLR 503 at [99]. Potential exposure to prosecution under a foreign law is not a bar to an order for production: Michael Wilson & Partners Ltd v Nicholls [2008] NSWSC 1230; 74 NSWLR 218 at [11], applied in Nexans SA RCS Paris 393 525 852 v Australian Competition and Consumer Commission [2014] FCA 255 at [20].

That production might lead to a contravention of, and possible prosecution under, a foreign law is relevant to the Court’s discretion as to whether to require production. An Australian court will seek to avoid circumstances in which persons will be subject to the conflicting requirements of Australian law and foreign law where that can appropriately be achieved: Nexans at [20] (and the cases there cited). This reflects the principle that, as a matter of comity, an Australian court will exercise caution where enforcement of its laws would infringe the legislative policies of other countries: Hua Wang Bank Berhad v Commissioner of Taxation [2013] FCAFC 28; 240 FCR 158 at [15].

A party to litigation, including a foreigner, is ordinarily required to play by the local rules, including by producing discoverable documents wherever those documents are located. Thus, in Mackinnon v Donaldson, Lufkin and Jenrette Corporation [1986] Ch 482 at 494H–5B, Hoffman J stated (by way of obiter dictum):

Accordingly, where an applicant comes to an Australian court and engages its processes in an endeavour to obtain relief, the rules of the game – including discovery by the parties – are the local ones. Specific exceptions aside, the local game is played with an open hand. Ordinarily – in a case between domestic litigants in which no question of breach of foreign law arises – if a bank claims damages for negligence or misleading conduct it would not be able to resist, on the basis of client confidentiality, discovery of documents directly relevant to its own contributory negligence, the extent to which it relied on the impugned conduct, or whether there are other causes of its loss. If it were necessary, procedures could be adopted to preserve confidentiality whilst still providing the respondents a proper opportunity to defend the case on a procedurally fair basis.

In Morris v Banque Arabe et Internationale d’Investissement SA (1999) 2 ITELR 492, Neuberger J ordered inspection of documents despite the risk that disclosure would constitute an offence under a French ‘Blocking Statute’. His Honour observed (at 508H–I):

This observation was quoted with apparent approval by Henshaw J in Public Institution for Social Security v Al Wazzan [2023] EWHC 1065 (Comm). His Honour summarised Morris in the following way (at [44]):

Credit Suisse relied upon two expert reports from Professor Yvan Jeanneret as to the content of Swiss law. Professor Jeanneret is a professor of Swiss criminal law, specialising in Swiss secrecy laws, and has about 30 years’ experience as a Swiss attorney.

BCC/TM relied upon an expert report from Dr André Terlinden, an attorney-at-law admitted to practise in Switzerland. His areas of practice include Swiss financial market regulations, among other business law related matters.

Article 47(1) of the Swiss Federal Act on Banks and Savings Banks (Swiss Act) provides:

Professor Jeanneret explains that UBS AG and CSAG (when it existed) are banks for the purposes of the Swiss Act and UBS AM and CSAM are “managers of collective assets” for the purposes of Article 69 of the Financial Institutions Act (FIA), which creates an obligation of secrecy equivalent to that contained in Article 47: Jeanneret 1 at [4.4].

The evidence as to Swiss law can be summarised in the following way:

Credit Suisse relied on the report of Ms Armel Waisse, a lecturer and lawyer, specialising in banking and finance law in Luxembourg. BCC/TM did not adduce evidence in response.

Article 41(1) of the law of 5 April 1993 of the financial sector (Luxembourg Act) provides:

Article 41(1) refers to article 458 of the Luxembourg Criminal Code, which provides:

Ms Waisse explained that Article 41 of the Luxembourg Act applies to UBS FS (formerly CSFS), and that UBS FS is thus subject to the penalties in Article 458 of the Luxembourg Criminal Code: Waisse at [32], [57].

As to “criminal intent”, Ms Waisse stated at [78] (footnotes omitted):

The evidence as to Luxembourg law can be summarised in the following way:

The documents which contain the “CID” redactions were discovered because of the direct relevance of those documents to the issues in the proceedings. The Court was taken to some on this application. They are clearly directly relevant and significant to various issues, including: what Credit Suisse knew, and when; whether Credit Suisse’s losses were caused by the conduct about which it complains; and questions of contributory negligence and proportionate liability.

As BCC/TM submits, the Credit Suisse Funds have invoked the jurisdiction of this court by commencing these proceedings. They claim more than $2.2 billion from the respondents. They seek to avail themselves of Australian law, including federal legislation proscribing misleading or deceptive conduct. In response to the claims made by the Credit Suisse Funds, UBS has been joined for the purpose of seeking contribution from the successors to the entities that managed the investments relating to the claims brought. I do not consider that either a risk or likelihood of a breach of foreign law would be sufficient, in the circumstances of these proceedings, not to require production of unredacted versions of the documents containing “CID” redactions.

Unredacted discovery is necessary to permit a fair trial of the issues which the Credit Suisse Funds have raised, and of the issues which the respondents have raised by way of predictable and reasonable response to those claims, including by joining related entities to seek contribution. Credit Suisse has itself enjoyed substantial discovery from the other parties in the Greensill Proceedings.

The present case is distinguishable from Suzlon Energy Ltd v Bangad [2011] FCA 1152; 198 FCR 1 (Rares J), referred to by the parties in submissions, in which three Swiss banks were excused “for the moment” from compliance with notices to produce.

First, the banks in Suzlon were cross-defendants for claims of knowing assistance and receipt. They contested jurisdiction. It was unlikely that any document that might be produced in answer to any of the notices to produce would have any bearing on the argument as to whether Australia was a clearly inappropriate forum: at [16]. By contrast, all of the documents containing “CID” redactions are directly relevant to issues arising on the pleadings. BCC/TM’s application seeks only a subset of discovered documents, selected because they appear to be critical on the basis that they concern persons whose knowledge and conduct is central to defences or because they appear to be significant to matters in issue but have been so heavily redacted as to be unintelligible.

Secondly, Rares J placed significant emphasis on the principle that, as a matter of Australian common law, a person cannot be compelled to incriminate himself or herself: at [51]. It is difficult to see how that principle relevantly applies. As Brereton J observed in Nicholls at [5], to which Rares J was not apparently referred, production of documents in contravention of a foreign law would not involve self-incrimination in respect of any alleged or supposed offence already committed or then justiciable. The true nature of the objection is that production would require the defendants to do an act which, in the foreign country where it was to be done, would be illegal. That is not the same concept as is involved in the privilege against self-incrimination.

Thirdly, his Honour relied on Mackinnon in which the Court discharged a subpoena on the basis that the Court should not require a foreigner who was not a party to an action, and in particular a foreign bank which would owe a duty of confidence to its customers regulated by the law of the country where the customer’s account was kept, to produce documents outside the jurisdiction concerning business transacted outside the jurisdiction. However, as noted earlier, Hoffman J made it clear that he was not concerned with orders for discovery against a party to litigation. A party to litigation, including a foreigner, is ordinarily required to play by the local rules: at 494H–5B; Nicholls at [11].

The Credit Suisse Funds and UBS are parties, the former as applicants and the latter as cross-respondents to claims which were as good as inevitable once the proceedings had been commenced by the Credit Suisse Funds.

The caution which arises for reasons of comity, and the concern for foreign law repercussions (which – in the unlikely event they were to occur in the present case – would be unprecedented), is outweighed by the public interest in affording a fair trial to the respondents in a case brought by foreign entities in this jurisdiction.

The present case is also distinguishable from Australian Securities Commission v Bank Leumi Le-Israel [1995] FCA 1012; 134 ALR 101 (Sackville J), relied upon by Credit Suisse. The Australian Securities Commission (ASC) served secondary notices under the Corporations Law then in force on a Swiss bank and Swiss finance company, in Switzerland, requiring the provision of information about the ownership of shares in a company listed on the Australian Stock Exchange. Neither the bank nor the finance company complied with the notices, claiming that to do so would contravene Swiss law. The ASC applied for declarations that relevant provisions of the Corporations Law had been contravened. It is not clear whether an order was sought that the notices be complied with – see: at 153 and Australian Securities Commission v Bank Leumi Le-Israel (Switzerland) [1996] FCA 825; 69 FCR 531 at 542–3. In any event, Sackville J (at 148–9) observed that the fact that the recipient of a secondary notice is at risk of violating the law of a foreign country by complying with the notice is an important factor to consider in the exercise of the discretion conferred by the s 743(1) of the Corporations Law to excuse a contravention, and continued:

These general observations are obviously correct. They must be read in the context of the case. The case was not concerned with the situation in which a foreign entity chooses to commence litigation in Australia and simultaneously seeks to rely on foreign laws to avoid the ordinary rules applicable to the litigation. It was concerned with an ASC notice, served overseas, requiring a foreign entity to provide specified information.

The considerations referred to above – in particular that discovery is required to permit a fair trial – alone require Credit Suisse to provide unredacted discovery. However, that view is fortified by the following further matters.

First, as noted at [6] above, the unredacted versions of documents are currently stored across two electronic platforms located in Switzerland. But that does not mean that the documents do not exist in other locations. It is clear from the documents that they are likely to be able to be obtained from other, non-Swiss, locations. Credit Suisse’s case was that production of documents from these alternative sources would not constitute an offence under Swiss law.

The first applicant in proceeding NSD 169 of 2023 (being the sole applicant in proceedings NSD 106 of 2022 and NSD 110 of 2022) brought proceedings in the High Court of England and Wales: Credit Suisse Virtuoso SICAV-SIF v Softbank Group Corp [2025] EWHC 2631 (Ch). Mr Varvel gave evidence in those proceedings: Ex 1 and Ex 2 at Tab 24. In that evidence, Mr Varvel disclosed several matters concerning clients of companies whose ultimate parent was CSAG. The evidence included evidence which is relevant to the present proceedings. In explaining how Mr Varvel could give this evidence without breaching Swiss law, Credit Suisse observed that the Swiss offence can only be made out where disclosure occurs from Switzerland or in Switzerland in aid of foreign proceedings: T53.8–13; Jeanneret 1 at [4.6]. It was uncontentious that Mr Varvel was a Credit Suisse executive based in the United States speaking about events in the United Kingdom: T53, 74. Credit Suisse observed that it is only “information sourced from Switzerland, where the disclosure is required in Switzerland, that is caught by” the relevant Swiss law: T53.23–33.

It is clear on the face of many of the documents that copies are likely to be held in locations other than Switzerland. Emails are an obvious example. BCC/TM’s interlocutory application is targeted to seek unredacted versions of specific documents, including emails sent by Mr Varvel, Ms Warner and Mr Sitohang. Mr Varvel is (or at least was) based in the United States. Ms Warner is based in London. Mr Sitohang is thought to be based in Singapore. Even where it is not clear on the face of the documents that copies are likely to be held in locations other than Switzerland, it is reasonably likely that simple inquiries would reveal that the documents were held in other locations. It is unlikely that the documents were not sent to other locations or accessed from, and downloaded in, other countries. There was no evidence on this application about Credit Suisse making any inquiry about whether the documents captured by the interlocutory application could be obtained from locations outside of Switzerland.

If the relief BCC/TM seeks is granted, it is likely that the documents, or at least a very substantial number of them, will be able to be produced without breaching Swiss law. The Court should not exercise its discretion not to require unredacted production of documents in the usual way simply because one location of the documents is Switzerland.

Second, although the evidence indicated that there were several cases in which Luxembourg courts have imposed criminal sanctions for violations of Article 41 (Waisse at [81]), that there had been prosecutions in Switzerland for breaches of secrecy laws (Jeanneret 1 at [6.4]), and that Swiss authorities have very little prosecutorial discretion (Jeanneret 1 at [6.5]), there was no evidence of any prosecution of an entity (or person) in either Switzerland or Luxembourg for contravention of secrecy laws in circumstances where the entity made the disclosure to comply with an order of a foreign court. Professor Jeanneret stated that there have been 142 criminal judgments (not convictions) regarding Article 47 in the last 10 years. He only referred to the nature of one. This concerned breaches by a former bank employee and his lawyer by the production of documents in a civil proceeding in Switzerland: Jeanneret 2 at [6.2].

If there had ever been a prosecution in Switzerland or Luxembourg for disclosure made to comply with an order of a foreign court, one would have expected Credit Suisse to have adduced evidence about it. In Comaplex Resources International Ltd v Schaffhauser Kantonalbank (1991) 84 DLR (4th) 343 at 10–11, Southey J of the Ontario Court of Justice referred to expert evidence of a Swiss lawyer that there had, at that time, “never been a prosecution of a Swiss bank or bank employee for disclosing information or documentation for use in proceedings in a foreign court … under the threat of sanctions pursuant to a production or discovery order of the foreign court”. This may be because a prosecution in such circumstances “would not correspond with generally accepted notions of comity”: Morris at 509B (a case concerning French law). See also Al Wazzan at [44] and [157] (concerning Swiss law).

In short, the risk of prosecution is overstated. There is not one example of Swiss or Luxembourg authorities prosecuting for disclosure made in the context of a Swiss or Luxembourg bank (or institution) litigating abroad.

Third, I have reservations about the instructions given to the reviewers, and therefore of the redactions made. The Court was taken to several inconsistent redactions which suggest that Credit Suisse has made redactions to some of the documents where it should not have.

Credit Suisse relied on two affidavits prepared by Ms Köster, a partner from Walder Wyss in Switzerland. She was responsible for managing the review process and application of redactions: Köster 1 at [7]. The process was undertaken under her instructions and supervision by reviewers employed by Walder Wyss and an ALSP: Köster 1 at [8(a)]. She stated that the reviewers “were instructed to apply ‘CID’ redactions to the Swiss Documents to be produced … to mask information identified by reviewers as information protected by Swiss banking secrecy laws consistently with the scope and content of those laws as set out in the Jeanneret Report”: Köster 1 at [8(b)]. The Jeanneret Report was dated 13 March 2026, the same day that Credit Suisse provided “re-production” of the documents after the “re-review”. Ms Köster’s statement must be understood as meaning that Ms Köster gave instructions before 13 March 2026 which she considers were consistent with the scope and content of the Swiss laws as set out in the Jeanneret Report. However, in her affidavit, Ms Köster also stated at [8(e)(i)]:

The instruction to mask “information connected to … a client-bank relationship” is at the least inaccurate and, at worst, is capable of being understood as going materially beyond what Swiss banking secrecy law requires. Whilst disclosure of some information “connected to” a client-bank relationship might constitute an offence under Swiss law, the evidence did not establish that disclosure of all information connected to a client-bank relationship would constitute an offence.

Further, Ms Köster stated that, in identifying and redacting information, reviewers were instructed to satisfy themselves, based on information available on the face of the documents or privileged and confidential instructions received from Ms Ann Lapping, Legal Counsel, Swiss Litigation, UBS AG, that the information to be redacted was, or was likely, the subject of, or connected to, a client-bank relationship with Credit Suisse and/or UBS: Köster 1 at [8(c)]. It is not clear why Ms Lapping’s instructions to reviewers were “privileged and confidential” or why any legal privilege could be maintained. In any event, the instruction from Ms Lapping (to the limited extent it has been disclosed by Ms Köster) appears to suffer a similar problem to the instruction from Ms Köster in overstating what was required by Swiss law.

BCC/TM submitted that the Court had no material before it capable of establishing the necessary elements of any claim that Swiss or Luxembourgish banking secrecy laws justify the redactions that have been made: BS [27] and [31]. BCC/TM submitted, in particular, that the evidence does not substantiate the basic elements of such a claim: (i) a description of the customer (by means which does not identify the customer); and (ii) the banking relationship within which the information was provided.

Credit Suisse submitted (and I accept) that Swiss and Luxembourgish secrecy laws prohibit so much as confirming the existence of a client relationship: CS [52]. Credit Suisse submitted that it was “obviously impossible” for Credit Suisse to lead evidence as to these two matters because that evidence would, itself, breach Swiss and Luxembourgish secrecy laws: CS [52]. Mr Schwabe, a partner from Arendt (Luxembourg), who was engaged to manage and supervise the review and re-review of the “CID” redactions to the Luxembourgish documents stated that he was “unable to give evidence about the content masked by any ‘CID’ redaction applied to particular documents to comply with Luxembourg Banking Secrecy Laws”: Schwabe at [14].

Evidence beyond that adduced – namely the evidence about the processes adopted and limited evidence about the instructions given – could have been given without breaching Swiss or Luxembourg secrecy laws. Evidence could have been given, for example, that a particular redaction would reveal a bank customer, or information given by a customer, or information obtained by the bank in executing an instruction from, or otherwise acting for, a customer.

I accept that a high-level explanation for the redactions has been provided when one infers (as I do) that the document review process said to have been followed was in fact followed. However, to the limited extent the instructions to reviewers were revealed, they travelled materially beyond what was required by Swiss and Luxembourg secrecy laws. This perhaps partially explains the number of inconsistencies and the fact that redactions have been applied where there is no obvious basis for the redaction. I am not satisfied, on the evidence adduced, that disclosure of the relevant documents would contravene Swiss or Luxembourgish banking secrecy laws to the extent contended.

Fourth, Credit Suisse did not adduce evidence to establish that: (a) the contractual arrangements it had with the relevant customers did not include an agreement for the relevant bank to disclose documents in circumstances such as the present; or (b) the bank has taken steps to obtain (fully informed) consent from the relevant customers to disclose documents. As to (a), the agreements between the two Credit Suisse Funds and CSFM contemplated a party disclosing confidential information where “compelled or authorised to do so by law or by any court of competent jurisdiction”. Agreements between CSFM and both CSFS and CSAM contemplated disclosure of information that entered the public domain through no default of the disposing party or where required by “any applicable laws or regulations” or a “competent court”. That does not establish that there was an equivalent agreement with any particular bank customer in respect of which redactions were made, but it does suggest the possibility of such an agreement, and the evidence does not indicate that this issue was investigated. As to (b), it is likely that some of the customers are parties in the Greensill Proceedings and subject to discovery obligations.

The final matter which reinforces my conclusion that disclosure should be required is that, if the Credit Suisse Funds had commenced proceedings in Switzerland as they could have, the direct relevance of the redacted documents to the issues would likely have been decisive in favour of ordering production: Terlinden at [48] to [49]. The Credit Suisse Funds chose to commence proceedings in Australia. This may have been an obvious choice to make given the statutory causes of action available or for other reasons. Whatever the reason, the consequence is that the proceedings will be determined according to the procedural rules of Australia and the respondents will be afforded a proper opportunity to meet the case brought against them by having access to discovered material directly relevant to the issues in the proceedings, including whether Credit Suisse relied on the conduct allegedly engaged in by the respondents or was wholly or partly responsible for its own losses.

Both BCC/TM and Credit Suisse observed that the other could have sought the documents through judicial assistance mechanisms and an appropriate order from a competent Swiss court – see: Terlinden at [46]. I would not refuse the relief sought by BCC/TM on the basis that it failed to engage that mechanism. BCC/TM raised its issues with the redactions in a reasonable way when the extent of the redactions became apparent. The fact that BCC/TM might have pursued production in another way (despite the likelihood of documents being located outside of Switzerland) does not weigh heavily towards exercising the discretion in Credit Suisse’s favour not to require it to give discovery according to the usual requirements. In any event, no evidence was adduced that the process could be undertaken expeditiously or as to the prospects of success of such an application – compare: Morris at 509–10; Secretary of State for Health v Servier Laboratories Ltd [2013] EWCA Civ 1234 at [104]; Al Wazzan at [45].

The Credit Suisse Funds and UBS must produce unredacted copies of the documents sought in the interlocutory application. Given the proximity of the trial, and the fact that an opportunity should be afforded for production from alternative sources, that production should occur within four weeks. The Credit Suisse Funds and UBS should pay BCC/TM’s costs of this application.