After a period of consultation, the Lord Chief Justice announced at his Mansion House speech on 8 July 2015 that a new specialist list dealing with high-value, complex financial disputes is to be established in October this year, further raising the profile of the courts in London for handling financial litigation.
As the world's largest dedicated business court, the Rolls Building opened in 2011. With a pool of specialist sitting commercial judges, coupled with London's status as one of the world's leading financial hubs, it comes as no surprise that the Rolls Building is extending its commercial stream by creating a new list handling major banking disputes ("The Financial List").
This new court will aim to provide a faster, more efficient and economical forum for disputes arising from, amongst others, equity, derivatives, foreign exchange and commodity markets. To qualify, claims have to be very big indeed (at least £50 million) or raise issues concerning the domestic and international financial markets.
Parties will be able to commence proceedings in the Financial List through either the Commercial List or the Chancery Division. Cases can also be transferred into and out of the Financial List at the request of the parties or on the court's initiative.
The English courts' judges are widely respected throughout the world and the new Financial List will draw on their expertise and rigour, with five judges from the Commercial Court and five from the Chancery Division.
The assignment of a judge to hear a particular case will be the joint responsibility of the Judge in charge of the Commercial List and the Chancellor. Aside from the judges' expertise in the field, the assigned judge will manage the case in its entirety: from pre-trial stages, through to trial, and to enforcement, if necessary. This will provide the parties with continuity and greater certainty.
Pilot 'Market Test' procedure
The new Financial List will also develop a pilot market test case procedure (the "Market Test"). According to the Consultation Document published by the Chancery Bar earlier this year, under this novel procedure:
- Claims can be brought before the court without the need for an actual dispute;
- A 'qualifying claim' is one which 'raises market issues in relation to which immediately relevant authoritative English law guidance is needed';
- Where appropriate, a trade body or association may join as a party; and
- A general rule is that there is no order as to costs.
The introduction of this expedited Market Test is likely to be followed by litigants and commentators alike with great interest. Parties will have an opportunity to 'know where they stand' at an earlier stage without having to get into a fact specific dispute. However, this may be a double-edged sword as no doubt some parties will seek to distinguish their actual disputes precisely on the basis that they are fact specific.
In short, the creation of a Financial List is to be welcomed but only the passage of time will show whether it will also set an international benchmark and help raise standards in financial markets. Arguably, that will depend more on a change of culture within financial institutions and the judiciary's responsiveness to the merits of viable claims brought against banks.