6 May 2003
Some incongruous images arise if one relies on Dickens' famous satire of the suitors of the Court of Chancery for a description of the modern Chancery Division. "That most pestilent of hoary sinners" is now arguably home to some of the most exciting and diverse litigation in the English courts.
The elite reputation of the modern Chancery Division is based on its ability to deliver a uniformly high standard of justice across cases of exceptional variety and complexity.
With the eyes of the world's press upon it, this reputation was enhanced by the judgment of Mr Justice Lindsay in Douglas & anor v Hello Limited & ors, a case involving important points on the right to privacy and intrusion from the press. At the same time, Mr Justice Lightman was also in the media spotlight, hearing the case of Evans v SMG Television Limited & ors, and his judgment in that case will be of as much interest to contract lawyers as to the readers of glossy magazines. While the tabloid press is capable of no less scathing judgments of the courts than Charles Dickens, internationally reported decisions by chancery judges are commonly held up as feats of accuracy and fairness, resolving opposing arguments of formidable subtlety and complexity put forward very forcefully by both sides.
At the same time as the Michael Douglas/Catherine Zeta Jones and the Chris Evans cases, a visitor to the Royal Courts of Justice could just as well have sat at the back of Court 53 and listened to Shalson v Russo, in which Mr Justice Rimer's judgment will be essential reading for all students and practitioners in the fields of tracing, constructive trusts and sham trusts. Indeed, when read alongside the imminent decision of the Royal Court of Jersey in the latest round of the long-running Grupo Torras litigation, it is anticipated that there may be a new framework in the law of sham trusts. In what might be regarded as a classic chancery dispute, the issues raised, in the context of international fraud, also included the exact rights over property appropriated by a fraudster and when those rights become 'fiduciary' in nature. If money laundering is becoming the single most significant issue in international finance, it is the Chancery Division that is at the forefront of the response of English jurisprudence.
In recent months, chancery judges have been asked to decide disputes in a number of other, equally challenging areas, such as property (Mr Justice Park in Courage Limited v Crehan), capital gains tax and insolvency.
"Mountains of costly nonsense," in the words of Dickens, are alleged to have met those suitors of the Court of Chancery, who came before Chancery Masters in the days of Jarndyce v Jarndyce. Modern litigants find that the no-nonsense approach has taken their place. Today's Chancery Masters are as well known for their fondness of efficiency and simplicity as they are for their intolerance of time-wasting. Case management, as enjoined by the 1998 Civil Procedure rules, is also sensibly enforced.
It is perhaps for all these reasons that the case for the Chancery Division as the natural home of the most challenging and interesting cases at present looks stronger than ever. As forecasts for the world economy become less confident, some areas of the High Court are becoming less active, seeing a decline in new cases and activity. The Chancery Division, on the other hand, would appear to be moving in the opposite direction - its lists continue to fill rapidly and its level of activity is consistently healthy. One of the underlying reasons for this state of affairs is simple: clients, both from this jurisdiction and abroad, like using the Chancery Division. In short, they feel they are in good hands. It can cope with a huge variety of work, from intellectual property, company and shareholder disputes and corporate insolvency, to trusts, real property and tax. All lawyers practising in the Chancery Division can reassure their clients that the judge will get to grips with the facts of their case, however complex, quickly and thoroughly. Clients are used to getting prompt and incisive decisions that can be readily understood and that, above all, make sense. On the other side of the bench, clients are quickly made aware that the Chancery Division is the home of specialists, both solicitors and counsel.
So what does the future hold for the Chancery Division? There is certainly no risk of it fading from the public eye, as yet more high-profile litigation gets underway in the autumn - the press will no doubt be interested in Re Crystal Palace FC 1986 Limited. The trend towards specialism, driven by a desire to provide the highest possible level of service to litigants, seems likely to continue, with the chancery sets of chambers consolidating their positions across the bar as a whole.
In a recent interview with OK! in the aftermath of Douglas & anor v Hello Limited & ors, perhaps the world's most famous recent user of the Chancery Division gave his verdict on his experiences there. In his Manhattan apartment overlooking Central Park, Michael Douglas said that he felt "very grateful that the judge knew what the issues were about, and it wasn't clouded". While few litigants have the opportunity to make their views so widely known, practitioners in the Chancery Division will have heard similar comments from their clients this year and those comments will no doubt continue.
Anthony Trace QC and Oliver Michell are both members of Maitland Chambers. Anthony Trace is vice-chairman, and Oliver Michell is a member, of the Chancery Bar Association