17 March 2008
The futures of the Commercial Court and Chancery Division, combined or otherwise, have been the subject of debate for a long time. Twenty years ago the Committee of the Deployment of the High Court Bench concluded that a single listing office for the High Court in London should be established and that the full benefit of such office could be achieved only with a unified High Court. The Heilbron Hodge report in 1993 recommended that the Queen's Bench and Chancery divisions should be merged to create a single civil division of the High Court.
In 1995 Lord Woolf concluded that it was not desirable to merge the two divisions, so long as judges were nominated to lists according to their expertise, irrespective of the division to which the lists belonged.
In 2005 the then Department for Constitutional Affairs published a consultation paper that again considered whether there should be separate divisions. The responses were revealing and, for once, unequivocal: "In terms of the consultation process as a whole, if only one point could be taken from the combined responses received, that point would be that the judicial specialisms that exist now should not only be protected but probably also extended. A massive proportion of respondents suggested that the judges with a firm grounding in their area of expertise - with appropriate staff support - are essential if we are to achieve a truly fair, efficient and effective justice system."
In the case of the Commercial Court, many respondents pointed to its international prestige in support of its separate retention - save that the bankruptcy registrars provided a provocative dissenting voice. They challenged the notion of the Commercial Court having any kind of special status, particularly one derived from the assumption that "powerful commercial interests supported by large firms of solicitors and their equivalent at the bar should enjoy special facilities denied to other court users and taxpayers".
Less controversial (certainly for this writer) was the overwhelming and predictable view of respondents that what mattered most was that, whatever courts or lists existed, they should house appropriately qualified judges who could deal with the cases that were likely to come before them. Now the merger debate has been sparked once more by the welcome decision of the Government to create a modern, dedicated business court.
The new site will include at least the Commercial Court, the Chancery Division and the High Court section of the Technology and Construction Court (TCC). All have fine reputations. All are capable of resolving commercial disputes. If we were starting with a blank piece of paper, designing a dedicated business court for the future, I have little doubt that there would be a single business court with suitably qualified and experienced judges allocated to the resolution of these disputes, large or small.
If, as is inevitable, yet another consultation is launched by Her Majesty's Courts Service in relation to a single civil court, the temptation will again be to start over from the very beginning. Tempting, but not necessarily right. An extreme proposal could be the folding of the Commercial Court into a commercial list of the Chancery Division or the taking away from Chancery and the giving to the Commercial Court any business other than its traditional core workload of equity and trust, probate, tax, partnerships, IP, company law and insolvency (although a potential overlap with 'commercial' will still exist).
But we are not starting from scratch and nor should we try to. In the response to the 2005 consultation, Sir Andrew Morritt and the judges of the Chancery Division made the point that the Chancery Division itself enjoys a wide reputation for excellence, offers flexibility to users and has a thriving esprit de corps.
Seeking to fold the Commercial Court into the Chancery Division or taking away the commercial business of the Chancery Division would not in my view be a desirable way forward. Sixty five per cent of the respondents to the 2005 consultation paper favoured the retention of divisions in broadly their present format. Of the 19 questions posed by the consultation paper, the question about the retention of the divisions received the most responses. Indeed, 14 per cent of the respondents replied only to that question.
That being said, the majority of the very senior judiciary apparently favoured an approach whereby judges in the same broad field of specialisations might come together for the purposes of allocating business. Indeed, that may be a logical step towards ensuring that cases are dealt with in practice by the judges with the most experience and expertise to deal with them.
Defining the appropriate lists/judges is to me a more appropriate and relevant objective than amalgamating the High Court and county court or at a stroke doing away with the divisions of the High Court. Seeking to achieve anything more is likely to lead to real divisions within the bar and the judiciary. This would be a serious error that would outweigh any potential advantages.
It may be happening informally already, but I for one would encourage there to be a cross-committee of Commercial, Chancery and TCC judges looking at the kind of business that might overlap in the new court and how those overlaps might best be approached cooperatively, while leaving intact the strength of individual brands.
Starting the question with 'how do we make sure that business problems are resolved by the right business judges?' may lead to flexible specialist lists or may lead to a more flexible allocation of judges between lists and divisions, but this should be judge-led, not Treasury-driven.
To an extent this cooperation already exists. Whatever happens going forward, it is important that these kinds of issue are addressed and pre-empted by the judges themselves before a solution is forced upon them by the Government.
This new business court should be seized upon by judges as an opportunity to work together. It will be contrary to the interests of us all and our powerful brand if the next round of consultation sets judges against judges and bar against bar, creating frictions that should not exist and should not be inadvertently encouraged.
Simon Davis is a commercial and litigation partner at Clifford Chance