Leaving Bleak House behind

Since only death and taxes are certain in life, one would think chancery practice would be a particularly lucrative area of practice for barristers and solicitors.

Surprisingly, most solicitors in the area say it is a “steady” source of work rather than a buoyant one. The substantive (and cosmetic) changes in the 1980s introduced by Inheritance Tax, gave people a chance to divest wealth as part of an overall scheme of financial planning and much of that tax and trust-related work has now tailed off.

This may be bad news for the Chancery Bar. Heads of commercial litigation departments at City and national firms have noticed an increasing tendency to use the “best advocate and the best cross-examiner in a case rather than a pure chancery barrister”.

A number of other litigation practitioners agree, citing Anthony Grabiner QC at 1 Essex Court and Peter Scott QC at Fountain Court as barristers often instructed in contentious chancery matters.

This view is reinforced by the comments of other chancery litigation practitioners that there is less of a feeling of prejudice against the “people over the road” in the commercial Bar.

For the practitioner, the emphasis is on good advocacy skills, whether chancery or not. Solicitors will consider the top 10 advocates across the board, and sometimes these will be “on the other side”.

But this trend is less obvious in traditional, usually non-contentious, areas of chancery. For tax in particular, one partner at a firm in the North says counsel will still need to be instructed in more technical cases. In such cases what is required is “good solid advice not over-inflated ideas, most of which are wholly impracticable and where, if you manage to persuade the client to do it, they would have to be either mad or rich”.

He says that firms with large private client practices look to instruct counsel who are able to give “original advice to clients with a practical overlay”.

“Clients want a scheme that is tried, tested and sensible, not a speculative scheme that might involve more expense and even litigation against the advisers.”

And in the more specialised areas within chancery such as charity, Andrew Phillips, senior partner at Bates Wells & Braithwaite, believes the prospects for chancery barristers are marginally better than general chancery practice. “Unfortunately for charities but fortunately for lawyers and financial advisers, there is an increasing number of regulations and a greater amount of legislation being passed in relation to charities,” he says.

“Although it is a strange and entertaining area of practice and previously quite limited for lawyers, recent legislation means we may have to get a second opinion more often, or even go to the High Court.”

But charities are also often involved in tax-saving schemes. Such schemes increasingly involve offshore trust work where legal advice is needed; if, for example, Channel Islands legislation is unclear, the parties will usually look to English law in a matter of interpretation.

And on the international level, more overseas investors from, say, Hong Kong, see the UK as a cheap place to buy property and establish a base for both the UK and Europe.

With the wealthy rearranging their financial affairs in readiness for a general election, perhaps the election itself – if not the result – should be added to the list of life's certainties.