Back in November 2015, we posted an article on the new Financial List in the UK High Court. Since then it has been confirmed by Mr. Justice Blair that the Financial List is “operating well” and the List appears to have proved popular, with at least eight new cases commenced there and two that have been transferred, covering a wide range of financial transactions (see speech by Mr Justice Blair in the Institute of Commercial and Corporate Law annual lecture).
Two cases have now reached trial in the List, including a case relating to the terms of a surety bonds facility which was transferred to the List at the request of the parties, in part due to the significance to the markets of issues regarding the interpretation of Loan Market Association documentation (see GSO Credit – A Partners LP & Ors v Barclays Bank plc v HCC International Insurance Company plc [2016] ECHW 146).
Perhaps more interestingly, a decision has recently been handed down regarding a contested application to transfer proceedings to the List. In Property Alliance Group Limited v Royal Bank of Scotland plc [2016] EWHC 207 (Ch), the significance of the subject-matter to the markets and to other cases involving similar issues (in particular, allegations concerning swaps misselling and LIBOR rate fixing), and assurances from the defendant that the trial date would not be disrupted, persuaded the Court to grant the defendant’s transfer application, despite the fact that this meant replacing the assigned judge after 15 months and that the claim was for c.£29m in damages (well below the £50m minimum in the criteria for the Financial List).
We make no comment on the merits of the transfer application in the PAG case or the motivations of the defendant for bringing the application. However, as investors in financial services disputes, we are interested to see the extent to which transfer applications could be used as a tactical tool for litigants in (existing) proceedings which meet the criteria for the List. Contested transfer applications are likely to be rare but there could be more cases where one party is unhappy with the incumbent judge and wishes to take their chances with a new assigned judge on the List and the other party prefers to maintain the status quo. The PAG decision provides useful guidance regarding whether the Court will be able to grant the transfer in such matters.
Oliver Hayes is a consultant at Balance Legal Capital LLP, a provider of third party funding for international arbitration and litigation, headquartered in London, UK. Prior to joining Balance, Oliver was an associate in the dispute resolution team at Freshfields Bruckhaus Deringer LLP, specializing in contentious matters in the financial services sector.
