Background
The Credit Suisse Proceedings arise from the collapse of the Greensill Group in March 2021. Two Luxembourg-based Credit Suisse funds — CS Virtuoso and CS Nova — invested in Notes backed by trade receivables from supply chain finance transactions arranged by Greensill entities. Those Notes were said to be supported by trade credit insurance issued by BCC Trade Credit Pty Ltd as authorised representative of Insurance Australia Limited (IAL). When Greensill collapsed, the CS Funds sought judgment against IAL under the insurance policies. IAL denied the policies were valid. The CS Funds also brought alternative claims against IAL and various other parties, including BCC, Tokio Marine entities, and Marsh. The respondents in turn pursued the Credit Suisse entities (now succeeded by UBS entities) for contributory negligence, proportionate liability, and contribution.
The litigation is of exceptional scale — pleadings exceed 23,000 pages and there are over a dozen streams of expert evidence requiring findings on the laws of Australia, Switzerland, Luxembourg, England and Wales, Japan, and Germany. Against that backdrop, the Court had ordered in December 2024 that all expert questions must be pre-approved by the Court and that parties in the same interest on any issue may not call more than one expert witness on that issue without leave.
For the “CS Reasonable Investor Questions” — addressing the standard of care expected of the CS Funds, their fund manager (CSFM), portfolio manager (CSAM), and administration agent (CSFS) — the respondents jointly briefed Mr Adam Fairhead. Credit Suisse engaged Mr Matthias Pelzer, who confined his report to CSAM’s position within the Luxembourg AIFM regulatory framework and expressly disclaimed any opinion on Swiss law or regulatory expectations. After reviewing Mr Fairhead’s filed report, Credit Suisse identified a gap: neither Pelzer nor Fairhead had addressed CSAM’s position as a portfolio manager of structured credit products (SCPs) from a Swiss law and practice perspective. Credit Suisse then engaged Dr Richard Bateson, an expert in SCP portfolio management, whose report was served on 30 May 2026 and filed on 29 May 2026. The BCC/Tokio Marine parties, supported by IAL and Marsh, contended that Credit Suisse required leave to rely on Dr Bateson’s report and that leave should be refused.
The Court’s Holding
Justice Thawley granted leave for Credit Suisse to rely on Dr Bateson’s report. The Court accepted that Mr Pelzer’s report was confined to CSAM’s obligations under the Luxembourg AIFM delegation framework and did not address CSAM’s position as a portfolio manager of SCPs from a Swiss law or practice perspective — the precise angle addressed by Dr Bateson. Because Dr Bateson addressed an aspect of Mr Fairhead’s report that Mr Pelzer did not, the two reports were not duplicative but genuinely complementary in scope.
The Court nonetheless criticised Credit Suisse’s conduct. Credit Suisse had known before engaging Mr Pelzer that he would not address Swiss regulatory matters, yet failed at that stage to flag the need for a second expert or to clearly explain to the Court and the parties the precise gap to be filled. The explanation eventually given to the respondents was, at best, unclear, and the issue was raised for the first time when the parties were already heavily engaged in pre-trial preparation. The Court noted the general expectation — even without an express order — that a party should not adduce evidence from more than one expert in a discipline without giving early notice: citing Novartis AG v Pharmacor Pty Ltd [2022] FCAFC 58; 290 FCR 345 at [25]–[30] and EIS GmbH v LELO Oceania Pty Ltd (Expert Evidence) [2024] FCA 1334.
Despite those criticisms, the balance of prejudice favoured granting leave. The respondents acknowledged that Mr Fairhead could address Dr Bateson’s report in the time available, and the prejudice to Credit Suisse from being left without any expert evidence responding to Mr Fairhead’s analysis of SCP portfolio management would have been greater than any prejudice to the respondents from having to deal with a second report.
Key Takeaways
- A court order prohibiting multiple experts on the same issue does not bar a second report where the two experts genuinely address different sub-issues — here, Luxembourg AIFM framework obligations versus Swiss-law SCP portfolio management standards.
- Parties must identify the need for additional expert evidence at the earliest opportunity, articulate the precise gap in expertise, and seek leave promptly; late disclosure, even if ultimately successful, will attract judicial criticism and may expose the party to cost consequences.
- In large, multi-jurisdictional commercial litigation, courts will scrutinise requests for multiple experts carefully, but will grant leave where refusing would cause greater prejudice than permitting the additional evidence.
- The threshold question is whether the proposed second expert addresses a distinct area of expertise or distinct aspect of the questions — not merely whether there is some overlap in subject matter.
Why It Matters
This decision sits within the broader Greensill litigation — one of the largest and most complex commercial disputes in Australian legal history — and offers practical guidance on managing expert evidence in mega-litigation. It confirms that case-management orders limiting expert witnesses serve genuine efficiency and fairness objectives, but must be applied with enough flexibility to prevent a party from being left without adequate expert coverage of a distinct and contested issue. Courts will look at whether the proposed second expert’s evidence genuinely fills a gap, the extent of any prejudice to opposing parties, and whether the requesting party acted with appropriate diligence in raising the issue.
For practitioners in cross-border financial disputes, the case also illustrates the complexity of identifying expert expertise where a single entity (here, CSAM as Swiss-domiciled portfolio manager of Luxembourg-regulated funds investing in structured credit products) sits at the intersection of multiple legal and regulatory regimes. Early identification of those intersecting obligations — and transparent disclosure to the court — is essential to avoid the procedural difficulties that beset Credit Suisse here.