Business Bar melting pot

Philip Hoser looks at the identities of the chancery and commercial sets, and suggests that there can be only one business Bar. Philip Hoser is a barrister at Serle Court Chambers.

The 1980s and 1990s have seen a gradual transformation of much of the chancery Bar – and a stealthy encroachment by it on areas of practice previously the sole domain of mainstream commercial chambers.

Recently, the commercial sets have been fighting back. But it may be too late for them to preserve the identity of a separate commercial Bar, save in the most highly specialised areas.

Chancery barristers' drive to capture a share of the commercial sets' market was both characterised and assisted by three particular developments.

The first was the growth in importance of insolvency work that came with the repeated boom-and-bust cycle of national and international economics.

What had once been a backwater of practice assumed huge significance as bigger and bigger insolvencies hit the headlines and sent waves of legal consequence through all aspects of commercial life.

Doctrines such as set-off, retention of title and security became hot topics in the City. Business kings increasingly desperate to retain their shaky crowns dreamt up more and more complex means of doing so, the unravelling of which later fell to insolvency practitioners and their legal advisers.

Insolvency touched every aspect of the nation's life: individuals felt the effects of redundancy; depositors the loss of savings; businesses collapsed like dominoes; darlings of the business community turned out to be racketeers stashing away millions, stealing pensions or doctoring balance sheets.

And all this was meat and drink to the chancery Bar. The Companies Court was frequently so packed that there was barely standing room.

The second great fillip given to the chancery Bar was the fact that a new breed of chancery judge emerged during the 1980s every bit as good – and every bit as "commercial" – as those who sat (in smaller numbers) in the Commercial Court.

Commercial realism and common sense was the hallmark. These qualities came to be shared by almost all the judges of the division, giving rise to a consistency of approach which was as reassuring as it was novel. As a result, the Chancery Division became the forum of first choice in increasing numbers of commercial disputes.

Finally, the chancery Bar has been helped to greater prominence in matters of commerce by its rivals at the commercial Bar.

Recognising the advantages of commencing proceedings there, commercial practitioners embraced the new-style Chancery Division wholeheartedly – today many mainstream "commercial" silks and juniors spend at least as much time in the Chancery Division as in the commercial court.

Seeing the benefits of acquiring expertise in fields of practice traditionally labelled "chancery", commercial sets have set about recruiting practitioners with established chancery practices – or the willingness to develop them. Recognising the new reality, Combar (the Commercial Bar Association), accepted that the modern chancery sets of chambers qualified for membership.

In these days of more active growth policies among sets of chambers we see "commercial" sets specifically advertising for chancery practitioners to join them (as Fountain Court recently did) and chancery sets announcing that they want to increase the number of their commercial practitioners, such as my own set.

The reality is that there is no longer a separate commercial Bar, or a distinct chancery Bar, save at the fringes. Chancery sets still enjoy expertise in traditional chancery fields such as deep trusts, wills & probate and real property-related matters, though the sets that only deal with such matters have all but disappeared.

Some commercial sets still enjoy specific expertise in shipping and heavy re-insurance work of the sort that has not found a place in chancery sets – but again, those sets have become fewer. In Venn diagram terms, these areas of practice are in the non-overlapping fringes of the circles.

Although practitioners in the field know the reality, there are still some who fail to appreciate just how far the circles now overlap, how much ground the chancery sets have gained and the commercial sets given.

The terms "chancery" and "commercial" could be dropped in favour of something more descriptive of the work done by mainstream commercial and commercial chancery sets. Some District Registries and County Courts now have a "Business List". There has been talk of merging the Chancery Division and the commercial court – perhaps a High Court Business List is the answer?