Boundaries blur at the Bar

The crossover of counsel from the commercial Bar into the rarefied atmosphere of the Chancery Division has been a trend for a few years. More recently, however, solicitors are observing that chancery barristers are also dipping into the more robust realms of the commercial courts and the Queen's Bench Division.

As one leading practitioner comments: "It seems they are becoming more commercial in their outlook and in the work they are willing to take on."

Another notes Lord Woolf's proposals that the two divisions of the High Court be unified in his soundings for the Access to Justice report. "If Lord Woolf had his way the distinction would blur even more," says. "I am a great fan of merging the two divisions and harmonising and unifying the system. Particularly in the area of trust litigation and what is seen as traditional chancery there is little litigation – cases are so few and far between that a separate division is difficult to justify."

In the event, because of what was rumoured to be opposition from the chancery bench, the division will remain, although there will be no distinction in the procedures of the two divisions. This will mean considerable changes for chancery and commercial practitioners.

Where many practitioners consider the distinction between and Chancery Division and QBD to be particularly artificial, is in which division to opt for. As one Leeds partner comments: "For a contractual or commercial dispute or where you have company law overtones, you are better going to the Chancery Division, where the judges, by and large, take a more technical, legalistic view. In the commercial courts, the judges have a broad-brush evidence-based view, and have a feel of the merits rather than the underlying legal technicalities."

A point made by one leading practitioner is that the Chancery Division is often preferred because chancery judges do not use deputies. "In the Chancery Division you can be more certain that your preferred judge rather than his deputy will hear the case, which may make it a more popular choice," the practitioner states.

Another difference noted by some solicitors is that the Chancery Bar is perceived as slightly more expensive for similar talent. With the chancery and commercial overlap, commercial counsel such as Anthony Grabiner QC and Jonathan Sumption QC are on a par with the leading chancery barristers and sets, if not overtaking them.

Opinions are divided as to the trends in counsel's fees at chancery. One leading commercial partner says: "With such a small cache of well-known silks at the top end, if clients are willing to pay, for example £100,000 brief fees for four days (with refreshers on top), then that is what the market will stand."

As with instructing counsel in any area of practice, it is also a matter of negotiating with the clerks, but once a heavyweight is instructed on one side, it is inevitable that the other parties will follow suit by instructing other silks from the premier league, with the inevitable expensive brief and refresher fees.

One distinction which will probably remain for the foreseeable future is between the 'traditional chancery' – mainly wills and trusts – and 'commercial chancery'. And with death, taxes and the impending general election the only certainties in life, traditional private client practice continues to be steady.

There has not yet been a rush to brief tax and trust planning counsel, but clients and advisers may simply be waiting for the first budget after the election before spending time and counsel's fees on re-thinking their financial affairs. By this time, with the increasing crossover of barristers between the QBD and the Chancery Division, the lines between these two may have all but disappeared.