In the next instalment of High Court modernisation, the Chancery Division is set to be replaced with a new Business and Property Division (B&PD).
On the face of it, the restructuring is logical and reflects the reality that many modern disputes involve overlapping legal issues. The traditional separation of jurisdictions is less appropriate than it once was. The lady chief justice said ‘some might say that our three existing High Court divisions no longer represent the work we actually do’. However, the specialist courts will retain their existing jurisdictions and identities. Consequently, one wonders how, in practice, this change will actually assist multi-faceted commercial disputes. In theory, the changes should smooth out what might be viewed as anachronistic structural wrinkles rooted in historic court lore. For lawyers, however, this is just grist for the mill.
The restructuring has four main aims: (1) improving clarity on where to bring cases, thus increasing access to justice; (2) strengthening the international reputation of the B&PD; (3) simplifying governance arrangements; and (4) supporting flexible judicial deployment.
The first aim is worthy. To what extent it will have the effect intended, however, remains to be seen. As pre-existing specialist courts are set to retain their status within the B&PD, how will these changes help litigants in person understand where to bring their case? That said, access to justice is arguably not driven by court users knowing or not knowing where to bring their cases. Indeed, it is difficult to see how an exercise in high-level administrative restructuring will enable more litigants in person to access justice when, in reality, individuals struggle because specialist litigation is expensive, complex and time-consuming.
As to the second aim, it is not clear that the current structure ever stood in the way of the international reputation of the Business and Property Courts. International users tend to be represented by specialist lawyers and are already often familiar with the likes of the Commercial Court, the Competition Appeal Tribunal and even (perhaps to a lesser extent) the Chancery Division. These courts are, on the whole, relatable to them in terms of their focus. Other international courts, such as the Singapore International Commercial Court, have straightforward names.
Many have already questioned whether these cosmetic changes may lead our courts’ ‘international branding’ to gain more traction among international users. But does ‘the English High Court’ not already fulfil this function? It is hard to see how this restructuring will make much difference, especially where international users’ focus is not on ‘divisions’ as such but specialisms – and, perhaps more importantly, the impartiality and expertise of English judges.
Third, whether the changes will simplify governance arrangements remains to be seen. No doubt the devil will be in the details, but the aim is to be welcomed in principle. However, we need greater clarity on how this will be achieved. If an integrated approach to case management is taken, this will likely simplify the litigation process for all court users. Aligning or streamlining the separate court guides that currently apply might be a welcome improvement.
There is a view that the fourth aim is the most important element of this restructuring: we need more judges and more available court time. The lists are heavily congested, and lead times can be problematic and off-putting to regular international users. If these changes can make a dent here, then they are to be welcomed, although they may address the symptom without addressing the underlying cause.
Moreover, in taking a more flexible approach, it will be important to ensure that the coherence of specialist courts is not undermined and that the expertise for which these courts are renowned is not diluted. There is also the question of whether all B&PD judges will have the training, capability and expertise to be deployed across the specialist courts. We do not know whether flexible deployment will change how cases are listed and heard in practice.
Closer to home, there is likely to be some concern in legal circles about the loss of the Chancery Division as a named entity. Its origins as a court date back to the mid-14th century, and its abolition ends a legal institution of immense historical and jurisprudential significance. At the very least, some traditionalists within the Chancery bar are likely to mourn the loss of that distinct identity, even if the underlying courts and lists remain intact. Insofar as the changes are largely cosmetic, however, those traditionalists will simply need to move with the times.
Taking a step back, there is something of a superficial feel to these changes. If the stated aims are to be achieved, something less anodyne (albeit sensible) and more substantial might be required. It might compromise an effective strategy to prioritise recruiting more judges, increasing the number of sitting days and making the litigation process easier for litigants in person. This would begin to tackle systemic issues within the judicial system, rather than arguably rearranging the deckchairs.
Michael Barnett is a partner at commercial disputes practice Quillon Law, London
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