FINANCIAL LIST JUDGES EXPECT BREXIT PROCESS TO GIVE RISE TO NEED FOR FINANCIAL MARKETS TEST CASES

The post below was first published on our Litigation Notes blog.

The Financial Markets Test Case pilot scheme, which was due to end in September this year, is to be extended for a further three years. The scheme will also be expanded so that it applies to any Financial List claims which raise issues of general importance in relation to which immediately relevant authoritative English law guidance is needed. It will no longer be necessary for claims to raise issues of general importance to the financial markets specifically.

The scheme was introduced in October 2015 (see this post) but, to date, no cases have progressed through the scheme. Nonetheless, according to the minutes of the May meeting of the Civil Procedure Rule Committee (CPRC) at which the extension was confirmed, the Financial List judges are keen to make it a permanent part of the rules. It was agreed that its continuation as a pilot scheme which would cover the Brexit period would allow time to test the scheme. 

According to the note submitted to the CPRC by Mr Justice Birss proposing the extension, the scheme was recently considered, but not ultimately used, in a "very serious potential piece of litigation". Further details could not be given because the matter was highly confidential. The possibility of its use in that situation was seen as demonstrating the potential for the scheme and the need for its expansion. The note continued:

"Senior judges responsible for the Financial List are agreed that the Brexit process is likely to throw up the need for speedy market test case determinations, such that the future utility of the test case scheme is not in question.  Accordingly, it would be a big mistake to abandon the pilot now, just when people are becoming aware of its existence and looking at the possibility of making use of it. The procedure involves quite a culture change, so cannot be expected to show its value immediately."