A Supreme Court judge has dismissed a bid by AMP to allow a former executive to give evidence via video link from an Airbnb in Sheffield, England, during a high-stakes $300 million legal battle with a consortium of insurers.
Justice Rees rejected the financial services group’s request, describing the move as unfair to the defendant insurers, who would be deprived of a full and effective opportunity to cross-examine the witness - former AMP executive Craig Dainton - on crucial aspects of the company’s remediation program.
AMP is seeking indemnity under its professional indemnity policies for compensation paid to clients under a program prompted by investigations from the Australian Securities and Investments Commission (ASIC). The program addressed issues including “fees for no service” and inappropriate financial advice, ultimately costing AMP more than $800 million.
The insurers have refused to pay, and the case - set for a three-week trial from August 4 - could have major implications for the way professional indemnity cover is interpreted in large-scale misconduct matters.
The dispute over Mr Dainton's evidence arose after he informed AMP he would be overseas with his partner and her family for much of the scheduled trial period, including a cruise and an 89th birthday celebration for his partner’s father. AMP sought to have him testify remotely via his laptop, but failed to issue a subpoena to compel his attendance - an omission that became a central issue in the court’s ruling.
Justice Rees said AMP’s approach meant that if the application for video testimony was unsuccessful, it would elect not to read Mr Dainton’s affidavit at all. That affidavit included 151 paragraphs of evidence and referenced 130 documents relating to the design, oversight and operation of AMP’s remediation program, a key part of its case.
The judge was sharply critical of AMP’s failure to secure Mr Dainton’s attendance earlier, noting that the company knew the trial date had been fixed for over a year and did not disclose the witness’s unavailability until just weeks before the hearing.
“The situation has been brought about by AMP’s failure to serve Mr Dainton with a subpoena to give evidence in a timely manner, and its decision not to do so now,” Justice Rees wrote.
While the Evidence (Audio and Audio Visual Links) Act allows for remote testimony in certain circumstances, Justice Rees found it would be unfair to the insurers to conduct lengthy, document-heavy cross-examination over a video link, particularly during the early hours of the morning UK time. The court also raised concerns about reliability of internet connections and the witness’s ability to remain alert after days of holiday travel.
The judgment highlights the importance of early logistical planning in commercial litigation. Justice Rees dismissed the notion - raised by AMP’s lawyers - that it was standard practice not to serve subpoenas on cooperative witnesses, calling such a suggestion “news to me”.
She emphasised that serving a subpoena is generally considered “good practice,” particularly where a witness is no longer employed by the party calling them and has flagged potential conflicts with trial dates.
Ultimately, the judge found that permitting video evidence in this case would impede the insurers’ ability to test AMP’s claims, especially given the significance of Mr Dainton’s role in the remediation program and the scale of the claim.
The motion was dismissed with costs, and AMP must now decide how to proceed without one of its key witnesses.
Insurers involved in the case:
Chubb Insurance Australia Ltd (1st Defendant)
XL Insurance Co SE (2nd Defendant)
AIG Australia Ltd (3rd Defendant)
Berkshire Hathaway Speciality Insurance Co (4th Defendant)
Zurich Insurance Public Ltd Co (5th Defendant)
Lloyd’s Syndicate No 4711 (6th Defendant)
Lloyd’s Syndicate No 2786 (7th Defendant)
HCC International Insurance Co Plc (8th Defendant)
Liberty Mutual Insurance Co (9th Defendant)
Lloyd’s Syndicate No 1218 (10th Defendant)
AIG Europe SA (11th Defendant)
Lloyd’s Syndicate No 1861 (12th Defendant)
Lloyd’s Syndicate No 1274 (13th Defendant)
Markel International Insurance Co Ltd (14th Defendant)
Arch Insurance (UK) Ltd (formerly Arch Insurance Co (Europe) Ltd (15th Defendant)
Axis Specialty Europe SE (16th Defendant)
Lloyd’s Syndicate No 1955 (17 Defendant)
Lloyd’s Syndicate No 3210 (18th Defendant)
Lloyd’s Syndicate No 1886 (19th Defendant)
Lloyd’s Syndicate No 1183 (20th Defendant)
Lloyd’s Syndicate No 2015 (21st Defendant)
International General Insurance Co (UK) Ltd (22nd Defendant)
Endurance Specialty Insurance Ltd (23rd Defendant)
Allianz Australia Insurance Ltd (24th Defendant)
Lloyd’s Syndicate No 4000 (25th Defendant)
CNA Insurance Co Ltd (26th Defendant)
Lloyd’s Syndicate No 2232 (27th Defendant)
Lloyd’s Syndicate No 2007 (28th Defendant)
The complex legal battle between AMP Ltd and a syndicate of 28 insurers is set to play out in the Supreme Court of New South Wales next month, with AMP seeking $300 million under its professional indemnity insurance. The case stems from one of the most significant corporate accountability programs in recent financial services history: AMP’s remediation of clients affected by the “fees for no service” scandal.
At the heart of the dispute is AMP’s claim that the remediation payments it made to clients - more than $800 million in total - fall within the scope of its professional indemnity cover. The claim arises from a major regulatory intervention by the Australian Securities and Investments Commission (ASIC), which began investigating AMP over practices where clients were charged ongoing fees but received no corresponding advice.
In response, AMP launched a large-scale remediation program in 2016 to compensate affected customers. The program covered not only “fees for no service” but also inappropriate financial advice provided by AMP and its associated planners. At one point, the program was projected to cost $2 billion and take over two decades to complete.
Central to AMP’s case is the way it designed and implemented the program. In 2018, AMP brought in Craig Dainton, a senior executive with three decades of experience in the insurance sector, to overhaul and lead the project. Under his leadership, the program was restructured, completed by June 2021, and ultimately cost around $800 million—significantly less than originally estimated.
AMP lodged a claim for a portion of the remediation costs under its professional indemnity insurance program, which included cover with dozens of domestic and international insurers, including Chubb, AIG, Allianz, Zurich, and multiple Lloyd’s syndicates.
The insurers denied liability. While their full defence has not been tested in court, the case is expected to hinge on whether the remediation payments meet the policy definition of loss, and whether they were made based on a reasonable assessment of AMP’s legal liability - a key condition under many professional indemnity policies.
AMP intends to rely heavily on Mr Dainton’s affidavit to establish the rigour of the program and support its position that payments were based on sound legal and factual foundations. The company plans to tender a sample of 150 remediated client files and ask the Court to infer that the remaining payments followed a similar standard.
Mr Dainton’s affidavit spans 38 pages and references more than 130 documents. It details how claims were assessed, the internal review processes, and the involvement of external consultants. His evidence is critical to AMP’s effort to show that the payments were not ex gratia but tied to real or probable legal exposure.
As stated above, a procedural application filed by AMP to allow Mr Dainton to give evidence by audio visual link (AVL) from the UK was dismissed by Justice Rees, after AMP revealed he would be on a pre-planned overseas holiday during the trial.
The Court found that AMP had known the trial date for nearly a year but did not secure Mr Dainton’s availability or serve him with a subpoena. As a result, unless AMP changes its position, it will not read his affidavit at trial - potentially weakening its case significantly.
With $300 million on the line, the case is being closely watched by the insurance and financial services industries. It is expected to test the application of indemnity provisions in large-scale remediation scenarios, a growing feature of the regulatory landscape post-Royal Commission.
