Making sense of court divisions

It is more than a century since the Courts of Common Law and Equity were merged but as far as the organisation of the High Court is concerned that merger might never have happened.

The division of functions between the Chancery and Queen's Bench Division is still based on historical factors rather than logic and needs to be reconsidered as part of the general restructuring of the civil courts system being proposed by Lord Woolf's Access to Justice report.

The Chancery Division has long outgrown its Dickensian Bleak House image of grinding slowness and today is regarded as offering an efficient and well structured service.

The Commercial Court in the Queen's Bench Division, on the other hand, has come under fire for its slowness, even though originally it was set up to provide a quicker and less legalistic service than other courts.

One of the main developments in the past few years has been the growth of the Circuit Chancery Bars and along with it the realisation that businesses do not always have to go to London to get their legal problems dealt with.

The Circuit Chancery courts have been quick to realise that the work of the Commercial Court has more in common with the work of the Chancery Division than that of the Queen's Bench Division. Consequently, they have been anxious to see the establishment of Circuit Mercantile Courts to deal with the functions of the Chancery Division and the Commercial Court. Unfortunately, this effort has been hindered by the separate judiciaries and administration in the Chancery and the Queen's Bench Divisions.

Increasing the ability of Circuit Courts to provide such commercial services could play an important part in encouraging foreign investment in the regions and in reducing unnecessary legal costs for small local businesses.

The Heilbron Committee proposed the merger of the Chancery and the Queen's Bench Divisions with work being allocated to a number of specialist lists. This is one possibility, although a unified High Court civil division of over 80 judges might be unwieldy and too bureaucratic.

A better option might be to look again at the split between the Chancery and the Queen's Bench Divisions as set out in Schedule I of the Supreme Court Act. The Chancery Division is allocated a wide range of business subjects, from land dispute and patents work, to partnerships and bankruptcy.

But the Commercial Court, the Admiralty Court and the Official Referees Court which also deal with business matters are all part of the Queen's Bench Division. These three could be easily transferred to the Chancery Division as their work fits the general tenor and orientation of existing work. The new, enlarged division would provide the judiciary and administration for a unified Mercantile Court geared to dealing with all the legal needs of business nationwide.