Blurring the boundaries
14 February 2000
Veronica Cowan talks to Sir Richard Scott QC about changes facing the Chancery Courts and the whole profession.
As Vice-Chancellor of the Supreme Court, Sir Richard Scott QC has effective responsibility for the running of the Chancery Division of the High Court.
Barbara Dohmann QC, chairman of the Commercial Bar Association, describes Scott as "the human and attractive face of the judiciary", adding that he has an incisive mind and seeks to have regard for reality.
Those resistant to the Woolf reforms, which Scott is charged with implementing, may not take such a rosy view. He could be described as a covert legal revolutionary, although Chancery Bar Association chairman Geoffrey Vos QC thinks the Woolf reforms could be viewed as mere "evolution dressed up as revolution".
Scott showed his libertarian streak when, in 1987, he ruled against an attempt by the Conservative government to suppress Spycatcher, the memoirs of a former MI5 agent. Despite this, or perhaps because of it, when an independent-minded judge was needed to chair an inquiry on arms exports to Iraq, after the collapse of the Matrix Churchill trials, Scott was chosen.
He now has the difficult job of changing not just the procedures of the legal system, but also its culture. Vos says that Scott is a "forceful proponent of the Woolf reforms", and gives him credit for the implementation being smoother than many expected.
Scott's prediction that the technology for managing cases would not be ready by January 2000 proved correct. There never was any prospect of it being ready, he explained, because there was no clear plan as to what it should be.
An investigation into what is required to serve judicial needs and absorb technological advances as they arise is under way. Once completed, Scott has been assured the resources would be committed to it. Meanwhile, Scott says: "We are making do with less than the proper IT back-up the reforms should have. I am not critical, but if I was, [I would be critical] of the proposition expressed two years ago that we could have all the back-up necessary by January 2000. That was never realistic."
Asked if it is true that commercial practitioners are increasingly drawn to the Chancery Division because its judges have become more commercial in approach, Scott says that judges' styles generally have been changing over the years. He says: "They are less remote than they were, but I don't think the change in style in the Chancery Division is any different than in the Queen's Bench Division, or any other part of the legal system."
Scott explains that the boundaries between what is done in the Commercial Court and what could be done in the Chancery Division are not precise. Waiting times in the two vary periodically, and experienced solicitors handling a case which could be dealt with in either court might decide on chancery. But he denies they would favour it, adding: "The legal expertise of the commercial and chancery judges is very high, and it would be wrong to suppose there is any advantage one way or the other in that regard."
This facility to straddle the two courts and the convergence of chancery and commercial work in matters affecting the City, raises the issue of whether they should be merged. Is there practical utility in retaining a division, or is it a mere historical anach-ronism? The dreaded word "anachronism" has hardly left my lips before Scott puts up a passionate defence. Because many professional negligence cases can be started in the general part of the QBD or the Chancery Division, "the straddling between the Commercial Court and the Chancery Division is not special", he asserts.
Furthermore, some things can only be done in one of the divisions so, far from being anachronistic, this straddling is practical. But Scott warns: "It is very important that it should not be inflexible, and at the moment it is not." The future role of the Chancery Court is to deal expeditiously and competently with matters specifically assigned to it, as well as all the other civil law matters which could be, and often are, done in it.
Scott believes it is unlikely that the drop in the issuing of claims in the Commercial Court has anything to do with Woolf. He believes it has more to do with international trade developments and possibly increasing mediation and arbitration. He says mediation is increasing in all areas, which partly resulted from Woolf. There has been a big drop in Queen's Bench work generally, and the impact of Woolf has been great on ordinary litigation.
Scott sees no crisis at the commercial bar, arguing that transfers between commercial and chancery sets are nothing new. He also dismisses any link between the advent of solicitor-advocates and work drying up. Sitting in the Court of Appeal and the Chancery Division, he says: "It is very rare. There may have been a case, but I can't remember one, in which a solicitor-advocate has appeared."
Also, solicitors rarely exercise advocacy rights in chambers applications in the Commercial and Chancery Court. Scott is certain this has nothing to do with negative judicial attitudes, and his own attitude to solicitor-advocates is housed in diplomatic language. "I approve of good advocates and disapprove of bad advocates, who give whatever profession they belong to a bad reputation," he says.
As to court dress, Scott believes that barristers and judges should throw their wigs away. But he agrees that where solicitors exercise advocacy rights, there should be standardisation of court dress. "I think it is anomalous that solicitor-advocates do not wear wigs [when barristers do]," he adds.
But Scott does not favour fusion of the two professions. He says: "The split profession serves the public very well, and I would not mess around with something that is evidently working well. If we had a fused system that was working well, I would, for the same reason, not mess about with it."
Scott says that any system would throw up differences according to how its participants made their living. "Subdivisions are always going to appear. The subdivision in this country between advocates and, broadly speaking, non-advocates has become crystallised in two professions which serve the justice system well."
Scott has a fine sense of constitutional proprieties. Although opposed to a judicial appointments board for all judges, he can see a case - although the jury is still out - for some sort of supervisory commission, primarily for the appointment of Law Lords and heads of divisions. He says: "In its judicial capacity, the Law Lords make the law. Therefore, some sort of public presence in their appointment is probably desirable."
Heads of division "are anomalous", says Scott, with executive responsibilities and powers being exercised by judges not accountable to anyone, not even the Lord Chancellor. Scott says: "Once we are in office, we can't be got rid of. We have regular consultations with the Lord Chancellor but are not constitutionally accountable to him."
Asked if these judges would be sufficiently courageous to enforce the much-awaited Human Rights Act, Scott points out that judges differ. He observes that some judges "will be less disinclined than others to come to a particular conclusion on the grounds that nobody has come to it before".
As to the act politicising judges, Scott says that they are not political, but when issues arise with political implications, they apply their minds to them. "If that is what you mean by politicising judges, so be it. I don't think that matters. If you mean that we will have Conservative or Labour judges, I don't believe that will happen," he says.
On a political issue of another kind, Scott says he hunts "as often as I can". Oscar Wilde described fox-hunting as the "unspeakable in pursuit of the uneatable", a view the anti-hunt lobby endorses.
Scott says: "The lobby may be well-meaning, but it is utterly ridiculous, and their opposition to hunting is misconceived." If only foxes had his advocacy skills.