Ground breaking English initiative to manage high value financial disputes begins operation

22 October 2015

Michael Brown

Bird & Bird & First for Disputes

In order to retain their premier position in high value and complex dispute resolution for the international financial community, the English courts have created a specialist list to manage claims which relate to the financial markets. This ground breaking initiative is intended to ensure that these disputes will be heard by a designated judge, from either the Chancery Division or the Commercial Court, with sufficient expertise in financial markets, who will manage the claim after the first case management conference until its conclusion. The Financial List began operation on 1 October 2015 and is housed in the Rolls Building, along with the Commercial Court.

Claims will only be considered for inclusion in the Financial List if they satisfy one of three independent but related criteria:

  • claims of more than £50 million or equivalent and which relate to banking or financial transactions; 
  • which require particular expertise in the financial markets; or
  • which raise issues of general importance to domestic and international financial markets.

Importantly, there is intended to be some flexibility surrounding the above criteria. Disputes fulfilling the spirit of the criteria will be allowed to join the Financial List but others may be deemed unsuitable even if they come within the financial limit if the issues between the parties are relatively straightforward and do not need the expertise of a judge with financial markets experience. Claims can be issued directly into The Financial List via either the Chancery Division or the Commercial Court or they can be transferred to it after the first case management conference. 

What procedure will apply to Financial List cases?

The Financial List will adopt the same procedure whether the claim was issued in the Commercial Court or the Chancery Division. Whilst 'The Guide to the Financial List' will be the primary source of procedure, rules from the CPR, The Commercial Court Guide and the Chancery Guide will be applicable in situations not addressed by 'The Guide to the Financial List'. The first case was transferred onto the Financial List last week and is in the course of being tried by Mr Justice Blair.

Financial Markets Test Case Scheme

In addition to the Financial List a pilot Financial Markets Test Case Scheme has been introduced. The purpose of this is to facilitate the resolution of market issues which require immediate authorative English law guidance without the need of a cause of action between the parties. The scheme will allow for the granting of declaratory relief because it is in the public interest to do so in accordance with the guidance in Rolls-Royce plc v Unite the Union [2009] EWCA Civ 387. This will allow such matters to be expedited, and, as a general rule, each party will bear their own costs, allowing them greater control to manage their costs exposure. The pilot scheme operates from 1 October 2015 until 30 September 2017.

The Financial List aims to achieve several goals. 

  • Capitalising on the perceived strengths of the English court system, in particular the quality of the judiciary, by creating a specialist group of judges to hear complex financial matters. 
  • High value financial disputes will be resolved within a single, tailored, unified procedure, under strict case management with the aim of a speedy resolution. 
  • The English courts, which are in a competitive marketplace for dispute resolution venues, will see this as a welcome innovation and will hope that potential litigants do likewise.