Financial markets test case pilot to be extended despite no cases in nearly two years

Rolls Building: Brexit cases expected

The financial markets test case pilot scheme is to be extended in time and scope because senior judges have seen its value – even though not a single case has gone through it in nearly two years.

It could prove especially useful in dealing with issues that arise from Brexit, it is said.

The scheme is due to end in September but the Civil Procedure Rule Committee has decided to extend it for a further three years and align it with the Financial List – currently it only applies to some of the matters covered by the list.

Both the Financial List – for claims linked to the financial markets and worth over £50m – and the pilot were introduced on 1 October 2015 in the Rolls Building as a single specialist list in the Chancery Division and the Commercial Court together.

The purpose of the test case scheme is to provide a procedure which enables issues to be brought before the court by interested parties without the need for an underlying dispute.

In a newly published report to last month’s rule committee meeting, Mr Justice Birss said that despite the lack of cases, a meeting of Financial List users in February considered the availability of the scheme to be “important and useful”.

Further, the senior judges responsible for the Financial List – the Chancellor of the High Court, Sir Geoffrey Vos, and the judge in charge of the Commercial List, Mr Justice Blair – supported widening the scope of the scheme “as a matter of urgency” and in time implementing it on a permanent basis.

The report said: “The market test case scheme was recently considered, but not ultimately used, in a very serious potential piece of litigation. The details of it cannot be explained because they are highly confidential, but the Chancellor has said that the possibility of its use in that situation demonstrated to him its potential and its importance.

“Had it been used, it would have offered a solution to a very delicate financial situation. The fact that another route ultimately commended itself to those affected does not detract from the utility of the process having been available – quite the opposite, it served to highlight the fact that the current scope of the scheme is too narrow and that successful take-up of the scheme would depend on its expansion.”

Birss J added that the senior judges were agreed that the Brexit process was “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.”

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