PRACTICE DIRECTION 51M – FINANCIAL MARKETS TEST CASE SCHEME

This Practice Direction supplements various rules including Part 63A.

Contents of this Practice Direction

Title Number
General
Para. 1
The Financial Markets Test Case Scheme Para. 2

General

1.1 This Practice Direction is made under rule 51.2.  It provides for a pilot of the Financial Markets Test Case Scheme, to–

(a) operate from 1 October 2015 for two years to 30 September 2017;

(b) operate in the Financial List of the Chancery Division and the Commercial Court;

(c) apply to claims started on or after 1 October 2015.

1.2 Where the provisions of this Practice Direction conflict with other provisions of the rules or other practice directions, this Practice Direction shall take precedence.

The Financial Markets Test Case Scheme

Financial Markets Test Case Scheme – general

2.1 The Financial Markets Test Case Scheme applies to a claim started in the Financial List which raises issues of general importance to the financial markets in relation to which immediately relevant authoritative English law guidance is needed (“a qualifying claim”).

2.2 In such cases the Financial Markets Test Case Scheme enables the qualifying claim to be determined without the need for a present cause of action between the parties to the proceedings.

Proceedings in the Financial Markets Test Case Scheme

2.3 Where there is a qualifying claim a person who is or was actively in business in the relevant market may, by mutual agreement, issue proceedings against another person who is or was actively in business in the relevant market provided that other person has opposing interests as to how the law of England and Wales issue(s) raised by the qualifying claim should be resolved.

2.4 The claim form must indicate clearly that the claim is brought pursuant to the Financial List, Financial Markets Test Case Scheme.

2.5 Proceedings will be conducted in accordance with the procedure applicable to claims in the Financial List save that –
    
(a) for proceedings to be allowed to proceed to trial or summary determination the judge hearing the first case management conference or summary application must be satisfied that it is a qualifying claim, that it is a claim which can be satisfactorily determined as a test case and that the arguments of all those with opposing interests in relation to the issues in question will be properly put before the court by those represented.  For these purposes, in appropriate cases a relevant trade, professional or regulatory body or association, or a third party affected by the determination of the issues, may, with the permission of the court, be joined as a party or otherwise allowed to be represented;
    
(b) the parties will seek to agree the facts;
    
(c) the general rule will be that there shall be no order as to costs;
    
(d) in a case of particular importance or urgency the trial may, at the court’s discretion, be heard by a court consisting of two Financial List judges, or a Financial List judge and a Lord or Lady Justice of Appeal.

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