Marsh Limited v Greensill Bank AG

Marsh Limited v Greensill Bank AG [2025] FCAFC 196 is a Full Federal Court decision about cross-border litigation strategy, exclusive jurisdiction clauses and the Federal Court's power to protect its own proceedings. It is not a final ruling on whether Marsh engaged in misleading or deceptive conduct. Instead, it concerns whether Marsh should have been allowed to appeal interlocutory orders that stopped it from pursuing English court relief which could have shut down Australian claims against it.

The commercial background was the collapse of the Greensill group in March 2021 and the large body of litigation that followed in Australia. Greensill Bank AG, through its insolvency administrator, was involved in multiple Federal Court proceedings. Marsh was already exposed in related litigation because Marsh Limited was a respondent in separate Credit Suisse proceedings alleging misleading or deceptive conduct and negligence. In the Greensill Bank AG proceedings, Marsh was also identified in defences as a concurrent wrongdoer, which made future joinder a real prospect.

That prospect became concrete on 2 July 2024, when Greensill Bank AG gave notice that it intended to terminate a standstill deed and then join Marsh Limited to the Australian proceedings after the 30 day notice period expired. Before that period ended, Marsh filed proceedings in England on 29 July 2024. Marsh relied on letters of engagement for insurance brokerage services which it said contained English governing law and exclusive jurisdiction clauses. It sought anti-suit relief to stop Greensill Bank AG from suing Marsh in Australia or joining Marsh to existing Australian proceedings.

The procedural sequence is important because the Full Court's reasoning depended heavily on timing and purpose.

First, Greensill Bank AG was already an applicant in six Federal Court proceedings arising from the Greensill collapse. Marsh was not yet a party to those six matters, but Marsh had been named in concurrent wrongdoer defences. The primary judge found that this made it almost inevitable Greensill Bank AG would seek to join Marsh if it wanted to avoid under-recovery under the proportionate liability regimes.

Secondly, Greensill Bank AG gave formal notice on 2 July 2024 that it intended to terminate the standstill deed and then join Marsh Limited after the notice period expired on 1 August 2024. Marsh then commenced the English proceedings on 29 July 2024, shortly before that deadline.

Thirdly, the English court initially granted Marsh Limited interim anti-suit relief on an ex parte basis. But after an inter partes hearing in November 2024, the English court, with a confined exception, declined to continue that relief. The English court was not satisfied to the required degree that Greensill Bank AG was bound by the relevant exclusive jurisdiction agreement. The Full Court noted that Marsh had to meet a high standard in England and that the English court was not persuaded on the material then before it.

Fourthly, Greensill Bank AG sought anti-anti-suit relief in the Federal Court. There was an earlier October 2024 application linked to alleged use of discovered documents, and an ex parte interim anti-anti-suit injunction was granted against Marsh Pty Ltd but not Marsh Limited. Marsh Pty Ltd was then joined to the first six Greensill Bank AG proceedings on 5 November 2024.

Fifthly, Greensill Bank AG later obtained leave to join Marsh Limited to the proceedings on 14 March 2025. Its claims included statutory allegations that Marsh engaged in misleading or deceptive conduct by making representations about the validity of certain insurance policies and the authority of the managing agent who entered into those policies on behalf of the insurer.

Sixthly, Marsh Limited amended its English claim in April 2025 to seek a mandatory injunction requiring Greensill Bank AG to stay the Australian proceedings against Marsh Limited, or alternatively damages for breach of the letters of engagement. The English court made directions for trial, with a view to judgment before the Australian trial. Greensill Bank AG then filed the interlocutory application that led to the primary judge's anti-anti-suit orders on 10 October 2025.

By the time the matter reached the Full Court, Marsh Limited had also been joined to the six Greensill Bank AG proceedings, and Greensill Bank AG had commenced a separate proceeding against Marsh Limited and Marsh Pty Ltd. The result was seven Greensill Bank AG proceedings and eleven Greensill proceedings overall. The Full Court recorded that if Marsh obtained final anti-suit relief in England, Greensill Bank AG would be prevented from pursuing its claims against Marsh in those seven Australian proceedings.

The Full Court was not hearing a final appeal as of right. Marsh needed leave to appeal from interlocutory orders. To obtain leave, Marsh had to show both that the decision was attended with sufficient doubt to warrant leave and that substantial injustice would result if leave were refused.

Marsh advanced four proposed grounds of appeal. It argued that the primary judge erred in exercising the Federal Court's implied jurisdiction to grant anti-anti-suit relief, erred in exercising equitable jurisdiction, should have refused relief on comity grounds, and was wrong on the balance of convenience.

The central practical issue was whether Marsh's English proceedings interfered with, or had a tendency to interfere with, proceedings regularly before the Federal Court. Marsh said the English case was simply an attempt to enforce exclusive jurisdiction clauses in the engagement letters. It also argued that the Federal Court should not grant anti-anti-suit relief without first deciding whether the Australian misleading or deceptive conduct provisions relied on by Greensill Bank AG were mandatory laws of the forum.

Greensill Bank AG's position was that the English proceedings were being used to stop Australian claims from being brought or determined in the Federal Court. On that view, the Federal Court was entitled to protect its own processes even before the final merits of the underlying claims were decided.

The Full Court dismissed Marsh's application for leave to appeal and ordered Marsh to pay the respondents' costs of that application. It also extended the operation of certain earlier orders until the reasons were published.

The clearest part of the reasoning concerns the Federal Court's implied jurisdiction to protect its own proceedings. The Full Court held that it could see no error in the primary judge's conclusion that the English proceedings had a tendency to interfere with the determination of claims regularly brought against Marsh in the Greensill Bank AG proceedings. That tendency was enough to support the exercise of the implied jurisdiction.

The court rejected Marsh's attempt to describe the English proceedings narrowly as a simple effort to enforce exclusive jurisdiction clauses. The Full Court said that approach ignored the primary judge's findings about the surrounding circumstances and purpose of the English case. Those findings were important and were not challenged. They included that Greensill Bank AG had given notice that it intended to join Marsh, that Marsh knew joinder was likely, and that Marsh commenced the English proceedings because it wished to prevent Greensill Bank AG from pursuing future claims against Marsh in the Australian proceedings.

The Full Court also relied on the fact that Marsh later amended its English claim to seek a mandatory injunction requiring Greensill Bank AG to stay the Australian proceedings. If granted, that relief would directly interfere with the Australian proceedings. The court therefore accepted that the English proceedings were not merely parallel litigation. They were capable of stopping the Federal Court from determining claims already or regularly before it.

On the mandatory law argument, the Full Court agreed with the primary judge that it was neither necessary nor appropriate, on an interlocutory application and incomplete facts, to decide whether the Australian misleading or deceptive conduct provisions were mandatory laws of the forum. The court noted that the issue was not settled and that deciding it at that stage was undesirable.

The Full Court also rejected Marsh's submission that there could be no relevant interference because Marsh had not yet been joined to the Greensill Bank AG proceedings when it commenced the English case. The court pointed to the primary judge's findings that joinder was almost inevitable and that Marsh filed in England to prevent that occurring.

Although the extract is truncated during the detailed discussion of the equitable ground, the result is clear. The Full Court dismissed the leave application in full. The extract also shows that the primary judge had found the English proceedings were vexatious or oppressive because they were instituted, amended and continued for the purpose of preventing Greensill Bank AG from making and having determined statutory misleading or deceptive conduct claims in Australia, and because complete relief was available in the Australian proceedings. The Full Court did not grant leave on that ground either.

For business readers, the practical effect of the anti-anti-suit relief is straightforward. Marsh was restrained from pursuing or renewing English claims for relief in relation to the relevant engagement letters where those English steps would interfere with the Australian proceedings. In practical terms, Marsh could not continue using the English court process to try to stop Greensill Bank AG from pursuing its Australian claims against Marsh while the Federal Court proceedings remained on foot.

That does not mean the exclusive jurisdiction clauses were finally held invalid or irrelevant. It means that, at this interlocutory stage and in this procedural setting, the Federal Court protected its own proceedings from foreign steps that had a tendency to interfere with them. The Full Court's refusal of leave left the primary judge's anti-anti-suit orders in place.

The decision therefore illustrates an important distinction. A party may have an arguable contractual case about forum selection, but if the way that case is deployed would prevent an Australian court from determining claims regularly before it, the Australian court may intervene to preserve its own process. The court's focus is functional. It asks what the foreign proceeding is likely to do in practice, not only how the party labels it.

This case is especially relevant for businesses that use brokers, insurers, financiers, advisers and cross-border service providers. Many commercial contracts contain English law clauses, foreign court clauses or both. Those clauses can be valuable, but they do not operate in isolation. Once a dispute expands into multi-party litigation, statutory claims, insolvency issues or concurrent wrongdoer allegations, the forum clause may become only one part of a larger procedural contest.

The decision also shows that courts will look closely at conduct and timing. Here, the Full Court relied on findings that Marsh filed in England after being told joinder in Australia was coming and did so to prevent future Australian claims. That kind of factual context can matter as much as the wording of the clause itself.

Businesses should also note the entity point. The English court's interim position, as described by the Full Court, turned in part on whether Greensill Bank AG was actually bound by the relevant engagement letters. In group structures, agency arrangements and broker relationships, assumptions about who is bound by a jurisdiction clause can be risky.

Finally, this decision is a reminder that forum strategy can become expensive satellite litigation. Instead of resolving the underlying dispute, parties may end up fighting in two countries about injunctions, comity, discovery use, joinder and case management. That can increase legal spend, delay the merits and distract management.

This page is based on the published Full Federal Court reasons in Marsh Limited v Greensill Bank AG [2025] FCAFC 196, dated 19 December 2025, concerning an application for leave to appeal from anti-anti-suit relief orders made in Greensill Bank AG v Insurance Australia Limited (Anti-Anti-Suit Injunction Application) [2025] FCA 1241.

The judgment clearly supports the procedural history, the leave application test, the court's reasoning on interference with Australian proceedings, and the dismissal of the leave application with costs. The available text is truncated during part of the discussion of the equitable ground, so this page avoids over-stating details from that section and focuses on the parts of the reasoning that are fully clear from the published material.

This is general information, not legal advice. Businesses dealing with cross-border disputes should obtain advice on their own contracts, parties, claims and litigation strategy.