One for all
22 September 2008
The Chancery Division moving into a business court is a one-way street leading to the inevitable conclusion that there ought to be a merger of commercial and chancery.
By this token, the starting point ought to be the common ground: the administration of justice should be centred on serving the interests of the public at large – I include in this businesses of all descriptions.
As pleasant as the Chancery Division – or, for that matter, the Commercial Court or any other division or court – might be as a kind of club for its judiciary and regular professional users, they are the servants of the system and their purely personal preferences ought not to figure too highly in any argument against a merger.
The next stop in the argument is to examine briefly the caseload of the Chancery Division and the Commercial Court. So far as the Chancery Division is concerned, my experience is that there remains widespread mystery as to what it does. Even today, many lawyers will conjure up a picture of trusts, wills and the like.
Nothing could be further from the truth: UK taxation over the decades has ensured that domestic trust work is virtually dead. I take my own chambers, one of the largest chancery sets, as providing some reliable guidance. Of Wilberforce’s 20 silks, no less than 15 are referred to in legal directories as practising “commercial chancery”.
Stripped of the mystery and opacity by adding commercial to chancery, this jargon simply means work arising from business transactions of virtually every kind.
The claims brought are to enforce contractual remedies – damages, injunctions, specific performance or just plain interpretation. On the other hand, they are brought for the wide range of misfeasance that is encountered in practice – fraud, negligence and breaches of fiduciary duty, and the range of constructive trust and accounting remedies that are now commonplace.
It is exactly these business disputes that are the main substance of the workload not only of the Chancery Division but also of the Commercial Court.
Where a case is started will often depend on nothing more than the preference of the individual practitioners on the claimants’ side. And that is the reason why successful advocates have had to make themselves at home in both the Commercial Court and the Chancery Division. Once it is accepted that there are large degrees of overlap, it seems obvious that there ought to be significant benefits to consolidating the work of similar type under one roof.
Apart from the administrative and cost benefits of a bigger pool of judicial resources that will be available to keep cases running efficiently, schisms in the practice between the courts will be eliminated. With uniformity of practice ought to come a larger pool of practitioners available for the body of work. Did I hear once that increasing the supply reduces price? Focusing on litigants’ interests, one court is obviously best.
So far I have thought only about the similarities of the workload. Are the differences more important than the similarities? It is undoubtedly true that there are areas of difference unique to each division.
Obvious examples are Admiralty on the one hand and company or insolvency on the other. Handling these specialist areas will take exactly the same degree of administrative care in a merged court as it presently does in two divisions.
Bluntly, not every judge is suitable for every kind of dispute. I would no more expect every judge from the Commercial Court to feel able to deal with complex corporate insolvency than I would expect a judge with a speciality in patents or copyright to be at home with a marine accident or a demurrage dispute.
This same issue already exists in the Chancery Division with regard to some of its smaller specialist areas. The means already exists for flagging the requirements of particular cases, and with a larger pool of judges able to handle the common workload this should become easier on merger.
In summary, the extent of the similarities and the benefits arising from a merger hugely outweigh any issues relating to the differences, which can be handled at least as adequately and probably better post-merger as before it.
There is a final point. With the exception of some parts of the bar, the legal profession has already moved on. Solicitors adopt many names for their business work departments, but I do not think I have come across a single one in more than 25 years that is named by reference to chancery rather than a description of the work such as company/commercial or business disputes.
The reason is that clients understand these descriptions – in contrast to chancery, which they do not. The market has already moved beyond the divisions and it is time for the courts to catch up.
Lawrence Cohen QC is a barrister at Wilberforce Chambers
For a contrasting view from Geoffrey Zelin of Enterprise Chambers, click here.