Divisions avoid clash of interests
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1 October 2013
Amalgamating the Chancery and Queen's Bench Divisions would render the administration of chancery business unworkable, argues Hohn Mowbray.
In Last week's The Lawyer, Michael Briggs QC argued that the Chancery and Queen's Bench Divisions should be amalgamated, but there is absolutely no need for this.
The substitution of an equity or chancery "list" or "lists" in a single division, like the commercial list in the Queen's Bench Division, would not work because the proposal ignores insurmountable difficulties over the masters and it threatens to utterly disrupt chancery business.
In 1690 a bill was introduced into the House of Lords to forbid any court of equity to maintain any suit for which the proper remedy was at common law. The judges supported the bill, but one of the commissioners of the Great Seal said it would be "a perfect shutting up of chancery" and if carried "would render the administration unworkable, from which great hardships and injustices would arise".
Almost three centuries later, the Court of Chancery became the Chancery Division of the High Court where, by section 49(1) of the Supreme Court Act 1981, "the rules of equity shall prevail".
Now comes another attempt to abolish the Chancery Division, which threatens again to render the administration of chancery business unworkable.
The present organisation is satisfactory and workable, and no more restrictive than is necessary. Only limited classes of case are compulsorily assigned to the Chancery Division and nearly all of these are of a technical kind, demanding some special expertise in the court if the cases are to be expeditiously, let alone correctly, disposed of.
An example of this is the sale, exchange or partition of land, or the raising of charges on land. The sale of land is very different from the sale of goods, with which common law judges and masters are familiar, and an acquaintance with the general background and practice of conveyances is highly desirable.
Another example, mortgage claims, were assigned to chancery because Queen's Bench masters were making oppressive summary orders for payment of mortgage debts with regard to equity. There are no "lists" in the Bear Garden!
Other examples include the execution of trusts and administration of estates, bankruptcy, partnerships, intellectual property cases and cases under the Companies Act. Imagine a judge whose expertise runs to rape and murder being asked for "the unusual tripartite order" for the reduction of a company's capital.
And what appeals from the Pensions Ombudsman, the Charity Commissioners, the Commons Commissioners, the Chief Land Registrar and the Inland Revenue Commissioners are compulsorily assigned? Any of these would administer a shock to the system of a common law judge sent to try them and any Queen's Bench master who had to deal with them.
You could amalgamate or abolish the divisions and replace them with mere "lists", but the only way to be sure that these kinds of cases will come before judges and masters who are familiar with the background and do not need to be educated from scratch, is to assign them to a separate division with a group of judges and masters who have some familiarity with them. The commercial list, which requires a rather narrow specialism, is not a reliable analogy.
If things are left where they are, the cases that need particular specialties will be heard by judges and masters who command them, and the corps of specialist judges and masters will be maintained.
Other kinds of cases can be brought in Chancery or the Queen's Bench at the claimants' option. Michael Briggs QC will be able to bring his proceedings in the Commercial Court if he wishes. Likewise, the common law silks in his chambers can bring their commercial claims in the Chancery Division. If they do, the division will adopt the same practice as the Commercial Court, though the case management will be by the master. Transfer from Commercial Court to Chancery and vice-versa will continue to be possible.
Perhaps the greatest danger from amalgamating the two divisions would arise with the masters. It is not only Chancery Division judges who are the specialists, so are the chancery masters.
Remember, it is the masters who dispose of the majority of cases and before whom the great majority of hearings take place. The interlocutory and final disposal of cases by the masters would be utterly disrupted if there was a single set of masters for what are now Queen's Bench and chancery cases.
There are no "lists" in masters' chambers and it is hard to see how any could be introduced. This difficulty is averted with the Commercial Court, as a mere "list" in the Queen's Bench Division, by the judges conducting the interlocutory stages commercial claims, but that is a small part of the Queen's Bench Division's work.
It would be impossible for the great body of cases currently disposed of by the chancery masters to be heard by the judges. The only way of dealing with it is to keep the chancery masters and chancery business in a separate division. John Mowbray QC is head of chambers at 12 New Square.