Financial List – the court adapting to changes in financial litigation

You need a specialist lawyer if you have a complex problem. Similarly, you need the court to be ready to respond when you have a complex case. In response to the increasingly complex financial litigation heard in the English courts, the court can use the Financial List.

The Financial List is the court’s way to ensure that cases which would benefit from being managed and heard by a Judge with specialist knowledge of the law relating to financial markets, or which raise issues of general importance to those markets, get the expertise they require.

The courts have a history of ensuring that certain cases are heard by particular Judges. The Patents court, which deals exclusively intellectual property disputes, is one example.

How does the Financial List work?

The Financial List was established in October 2015 along with new parts of the Civil Procedure Rules (Part 63A and Practice Direction 63AA).

Parties indicate when issuing a claim whether they need a Judge with particular expertise and can apply to be transferred to the Financial List. As a result, the Financial List covers a broad spectrum of claims.

Generally claims will be for £50m or more, but can be smaller if the case concerns a point of general importance to the financial markets. Further, the Court has a general power to order cases into the Financial List which fall within the spirit but not the letter of the criteria of the Financial List.

There are eleven judges currently assigned to the Financial List; six from the Commercial Court and five from the Chancery Division.

Three main benefits of the Financial List

A proper understanding by Judges of how markets and contracts operate in practice is key. Laws relating to financial markets are complex. A change in law (or a clarification of a point previously thought to be settled) can generate great uncertainty in markets. Financial markets are also highly intricate; the operation of one contract has an impact on many others.

Second, it is intended that Judges will be allocated a Financial List case from inception to enforcement (if necessary). Litigation can be a lengthy process, and cases can be factually complicated. Allocating a single Judge to hear the entire case helps the courts to plan and the Judge to ensure efficient case management.

Finally, financial markets can change quickly, such as during a recession, and there may be uncertain points of law that need to be resolved swiftly. The court has therefore introduced a pilot test case scheme, which allows an issue of general market importance to be resolved swiftly without waiting for a cause of action. Other types of cases operate on a tight timescale due to their nature; think of judicial review cases which have to be heard quickly due to the public importance of the question being tried. Whilst no cases have gone through the test case scheme yet, we understand there is interest from court users in the scheme and it has recently been extended.

The courts are adapting to changes in litigation

The courts have a long and reliable history; one reason English law is used so frequently in international and complex agreements. But the courts do not stand still. The Financial List is an example of the courts continuing to adapt to the changing nature of litigation and business.

David Hall is a partner and head of dispute resolution and Tom Whittaker is a solicitor at Burges Salmon.