A unified business court is the only logical step forward, argues Michael Briggs QC.
Why is it that despite the wholesale slaughter of outmoded legal terminology carried out by the Woolf reformers in the cause of user friendliness, the two most opaque phrases of all – chancery and Queen's Bench – have survived intact, and continue not merely to baffle all but legal historians, but to perpetuate a split down the middle of the handling of business litigation?
If a lawyer from Mars, or even Calais or Glasgow, was to ask what those phrases mean and why they are used, I doubt whether even summary justice could be done to all the nuances and obscurities in an explanation shorter than this article.
Worse still, what on earth is a chancery barrister or chancery chambers? The tempting answer is a barrister or collection of barristers who appear in the Chancery Division. But that would be wrong, as would the implication that other barristers do not. Many of us, both from chancery and commercial chambers, divide our time between Chancery, Queen's Bench Division and Commercial Court, not to mention the Technology and Construction Court and other more specialist tribunals.
One might be excused for thinking that this historical fault must have survived the Woolf reforms by being overlooked. But that would be wrong. The Bar-Law Society independent working party on civil justice proposed the merger of the Chancery and Queen's Bench Divisions in a report in June 1993 as its first principal recommendation. The proposal involved the creation within a single civil division of a general business list to include much of the business litigation currently heard in the Chancery Division together with other general business litigation and professional (but not medical) negligence. That, together with personal injury and general tort cases, would occupy a separate list.
Around that general business list would be grouped satellite lists or courts of a narrower specialist nature, namely commercial, admiralty, jury, company and insolvency, patent, intellectual property, revenue, trust probate and real property, restricted practices, official referees and judicial review. Business list judges would all be available to hear general business cases, but would be included among the specialist lists depending upon their expertise in the relevant fields. Parties would have to demonstrate a real need for their cases to be placed in a specialist list.
The purpose of all this was to avoid the inefficient use of judicial resources by the increased flexibility inherent in having all the present chancery, Queen's Bench and commercial judges available to hear business litigation.
The report stated, in the purest Woolfian language: "References to Queen's Bench and chancery and other traditional, but unhelpful, names should, in our view, no longer be used. Instead, the names of the lists should reflect the nature of the case in a way readily understandable to the litigant."
In his interim report, Lord Woolf reviewed the Bar-Law Society's proposals, but concluded that it was "not desirable at this stage to merge the two divisions". He did recommend the concept of a general list with specialist satellites, but separately in each division, and he did suggest that judges should be available to sit in any specialist list warranted by their expertise, irrespective of the division to which that list was attached.
He left the question of a full merger to be reconsidered if necessary in his final report (it wasn't) and otherwise in the future if the retention of the two divisions proved to be "inimical to the uniform and flexible approach" which he considered "essential across the civil justice system".
A comparison between the texts of the Bar-Law Society report and the Woolf interim report will show that Lord Woolf accepted the spirit and most of the detail of the earlier proposals, but hesitated at the critical point of removing the historical split down the centre of business litigation.
He may have thought that the other proposals (general and specialist lists, judicial free movement between lists) would reduce the split to a harmless formality, but if so, I fear he was over-optimistic.
Before assessing the arguments in favour, it is worth looking at Lord Woolf's reasons for rejecting the merger proposal. They were in essence that the Chancery Division consisted of a small team of specialist judges with a special relationship with their specialist advocates, and special ways of doing quasi-administrative business. He feared that the chancery judges would be swallowed up by merger with the much larger Queen's Bench Division. Those are serious arguments, but I do not believe they should have prevailed against the case for merger.
First, I believe the specialist argument for the retention of the Chancery Division has been exaggerated. There have always been specialist areas at the fringes of the mainstream of business litigation, some in chancery, some in the commercial court and some in the Queen's Bench. But the main bulk of chancery work is business or commercial litigation, of a type also found in the Queen's Bench and in particular in the commercial court, and vice versa. Frequently, a business case will involve specialist elements which straddle the existing divide, such as a fraud by directors of an insurance company involving breach of trust and proprietary claims against the recipients or handlers of the proceeds.
Secondly, I do not believe that Lord Woolf's hope that flexibility and uniform practice will prevail despite the preservation of the two divisions will prove to be well founded. The Commercial Court and the Chancery Division have already raced each other to publish new (and unnecessarily different) procedure guides post-Woolf, with no attempt at cooperation. So far as I am aware, no real progress has been made on judicial free movement between lists in different divisions, although as before, judges are occasionally assigned for specific cases across divisions on an ad hoc basis.
Thirdly, barristers are still largely grouped into chambers by reference to the outmoded split between divisions. True, most chancery chambers call their work (correctly) chancery and commercial, but the perception lingers. This split finds no echo in law firms, which long ago modelled their litigation and other departments along lines that made sense to their clients and corresponded with modern business reality.
Barristers and the High Court should do so as well. Some chambers have started this process by lateral recruitment of chancery practitioners to commercial sets, and some the other way. More recently there has been a full merger of a chancery and a commercial set (Serle Court/One Hare Court), designed to provide a full business litigation service to professional and lay clients.
None of this, and still less the merger of the divisions, need threaten the genuine specialist service provided by the bar and by the High Court. For example, there is no divisional split as such in the Court of Appeal or in the House of Lords, but appeals are listed so as to ensure as far as possible that a judge or judges of suitable expertise hear the case. There is no reason why a sophisticated listing system in a unified business court should not be able to do the same. Furthermore, judges' CVs could be continuously updated by reference to case experience (as advocates' CVs are), so that their suitability for a specialist list could be reviewed, rather than set in stone on appointment to a division, as at present.
There is a risk that the mutual respect and cooperation which exists between judges and practitioners in the Chancery Division could be diluted by a merger. But I would expect it to continue at the specialist level, and to be fostered by the increasing number of specialist lawyers' associations, such as the Association of Contentious Trust and Probate Specialists and the Association of Partnership Practitioners, as well as by the specialist bar associations, which regularly invite judges specialising in their areas to speak at meetings, and exchange views about legal and procedural reform.
In 1873 the Chancery and Common Law Courts were fused into a single court system, each administering the same law, but still divided internally along the same lines. It is time to complete that process of fusion.
Michael Briggs QC was a member of the Bar Law Society working party which reported in 1993. He is chairman of the management committee at the merged Serle Court, now at 6 New Square, Lincoln's Inn.