Changing chancery

The chancery bar has seen a dramatic change in recent years as it takes on an increasing amount of traditional commercial work. Fenella Quinn reports.

Dust off your gowns, fluff up those wigs and for goodness' sake buy a proper pen, all of you in chancery – you're going to find yourselves in hot demand.

Word on the street is that Essex Court Chambers has a massive 13,000sq ft to fill (room for 40); Brick Court Chambers still has a few empty rooms; Fountain Court is trawling deep waters for chancery experts; and One Essex Court has been heard announcing its wish to hit the 100 mark.

In fact the next big change to hit the bar is already in full swing. As chancery practitioners increasingly act for clients in contractual disputes and commercial barristers try to get in on the act, more and more migratory silks and juniors are successfully navigating the great Strand crossing between the Temple and Lincoln's Inn.

Pointing to Simon Browne-Wilkinson QC's move from Fountain Court to Serle Court, John Martin QC of Wilberforce Chambers says: "A lot of people found that interesting. He's a well-known name, already in silk, and he can't have reckoned on much of a sea change in his practice. Yet he must have thought he was going to get something more from the chancery bar."

Another prime example of a merger of the two areas is the "amalgamation" of Serle Court Chambers and 1 Hare Court – as of this week called Serle Court. Explaining the rationale behind the merger, Douglas Close of Serle Court Chambers claims the marriage is "a good fit".

He adds: "We have a genuine synergy. The merger will allow us to provide services to clients across a broad spectrum and it gives us strength in depth across the civil field."

This merging of a well regarded but small and rather top-heavy commercial set with another highly regarded but bottom-heavy chancery set, will no doubt be closely monitored by all.

The concern for the smaller chancery sets is that the only way to move lock stock and barrel would be to surrender themselves, their identity and the delicate relationships that have bonded them together in a spirit of distanced kinship for centuries. However, the march of business will probably enforce this sorry state of affairs even on the most recalcitrant.

Chambers director at Fountain Court Ric Martin, who has recently welcomed several chancery practitioners including Bridget Lucas from Serle Court Chambers and Michael Green from 7 Stone Buildings, realises that in today's climate, once the mental leap of deciding to move has been made, the process can be quick and easy, if brutal. "Unlike a partnership, where there is a communality of purpose, the glue holding together a barristers' chambers is sometimes little more than the fact that they like each other – there is no business reason for them being together," he says. "If that relationship is put under pressure, the glue weakens and people start making decisions for business reasons. Once they realise the speed and ease with which they can move, and that they bring clients with them very easily, the decision to move becomes easier. It's not pleasant sometimes, but it's not difficult."

Martin expects to see further mergers, and claims he would neither rule in or out the acquisition of a team should the right business case be there. "I think we will reach the stage where things settle down along proper business lines, and those who are not prepared to be businesslike may struggle," he warns.

Despite the claims that commercial barristers are making serious inroads into chancery law – and despite the somewhat socially inept reputation that chancery practitioners have endured over the years – few would claim that commercial practitioners are endangering their chancery friends' livelihoods.

In fact the opposite seems to be the case. In a tortoise and hare scenario, commercial barristers have in the past doubtlessly been meaner, leaner and more user friendly. But those who have relied on quality work from major law firms are finding that solicitors are often doing all the work for them. Furthermore, Combar chairman Barbara Dohmann QC famously announced last year that work at the commercial bar was down by 25 per cent, largely thanks to the Woolf Reforms.

Combined with a serious attempt, at least among the most well regarded sets, to bump up their image, chancery's continued courtship of the smaller firms has enabled it to swipe significant work from under its commercial brethren's noses.

But there are other reasons for chancery barristers' rapid progress.

Firstly, the demarcation between commercial and chancery work is certainly blurred, if not totally extinct. Shipping, transport, aviation, insurance and reinsurance remain the exclusive province of the "real" commercial bar, and wills, trusts and probate stay firmly in the hands of a select few chancery eggheads – who probably still sit in their proverbial ivory towers. However, the vast swathe of work in between can be dealt with equally by a commercial or a chancery barrister.

Paul Shrubsall, joint senior clerk of One Essex Court, says: "The division between the two areas has become muddied to the extent where it's almost a nonsense. We find ourselves up with and against people from Wilberforce Chambers, Serle Court, Erskine Chambers, 11 Stone Buildings and 4 Stone Buildings all the time – there's more of a mix now."

Secondly, the continued popularity of the Chancery Division, with its own private rules and practice directions, is a vital factor. All the major financial cases over the past few years, such as BCCI, Maxwell, Polly Peck, Barings and Lloyd's have found themselves there, and there is nothing in the Supreme Court Act to define what sort of actions cannot be brought in chancery, whereas there are distinct rules to clarify what cannot be brought in the Queen's Bench Division.

Combined with a general consensus that chancery judges are more able and the general cyclical nature of the bar's mores overall, this has kept chancery in vogue and its popularity looks set to last.

Unlike the Dickensian cliche of actions "in chancery" rumbling on until all the money has run out, these days the situation is very different. Jonathan Seitler of Wilberforce Chambers explains: "If you need something really quickly, you can get a trial in three to four weeks. There's a relationship of trust with the listing officer."

According to Seitler, most of the significant commercial cases end up in chancery, such as the recent Don King Promotions v Warren litigation, which was essentially a contractual dispute. Not only did this case highlight how far commercial and chancery barristers mix and match – Michael Briggs QC and Douglas Close from Serle Court acted for King, Jonathan Sumption QC and Jonathan Hirst QC of Brick Court acted for Warren – it also proved how rapidly actions can be disposed of in chancery. Seitler points out that having witnessed the Chancery Division in its full glory, Don King, who won the case, proclaimed afterwards that British justice was easily the best in the world.

The third factor in chancery practitioners' favour, according to Bernard Weatherill QC of 3 New Square, is the increasing popularity of resolving disputes using chancery-based methods and a rise in the importance of companies and trusts as vehicles for wealth and wealth creation. "People are always looking for more obscure ways of achieving their objectives," he says. "There's no doubt there's been a resurgence in equity and fiduciary obligations – the Target Homes v Redfern case set out how fiduciary obligations can lie alongside contractual and tortious duties of care."

Explaining how chancery barristers are able to get ahead in today's legal world, Weatherill points out the all-important improvement in advocacy skills. Claiming that the chancery bar now boasts a cadre of "sophisticated advocates with subtle minds", he adds: "What assists the chancery bar to be able to compete with the commercial bar is they have grown up with the concept of equities, trusts and arcane property law, which comes strongly into company and insolvency law. If you throw a constructive trust in, this will culturally come more naturally to a chancery barrister."

Proclaiming that chancery sets have "thrown off the dust of ages", he says: "These are subtle and intelligent practitioners who are thorough and knowledgeable – you do not get people flying by the seat of their pants."

David Oliver QC, who recently moved from 13 Old Square to Erskine Chambers, agrees that since he started out, the chancery bar has changed dramatically.

"When I started, the majority of chancery chambers did very little litigation, and over my generation quite a large core of chancery litigation practitioners has emerged.

"You do get more user friendly that way, as litigation is a very practical subject."

On the mix of commercial and chancery work now available, he says: "There's a two-way flow. I'm a traditional chancery man but I find myself appearing more and more in the commercial courts. People are trying to move into different areas in order to protect against depletion of existing areas of work."