The trouble with Chancery

Christopher Tromans reviews recent judicial guidance on which courts should deal with Chancery cases

Solicitors may now find that cases with a Chancery flavour that are not proceeding in a Chancery county court are moved on. Many Chancery cases have been conducted not just in the High Court at the Royal Courts of Justice but in the eight Chancery District Registries at Birmingham, Bristol, Cardiff, Leeds, Liverpool, Manchester, Newcastle upon Tyne and Preston, in the county courts at those locations, and in many other county courts as well.

On the right track: Manchester is one of the eight districts where Chancery cases may be heard

Following implementation of the Civil Procedure Rules 1998 (CPR) it has been considered necessary to revisit the topic. A paper has recently been produced by Vice-Chancellor Mr Justice Lloyd and Mr Justice Hart, which gives revised guidance on the transfer of suitable Chancery cases started in non-Chancery county courts to the Chancery district registries and the county courts at them (Chancery county courts).


CPR rule 57.2(3) provides that probate claims can only be commenced in a Chancery county court. Similarly, CPR rule 63.13 and part 63 practice direction paragraph 18 specify cases that must be commenced in a Chancery county court or in the patents county court. Otherwise, Chancery-type claims can be issued in any county court but, as is required by CPR practice direction 7A, paragraph 2.5 should be marked 'Chancery business'.


The focus of the guidance is now on whether Chancery business cases should be transferred to a Chancery county court for case management, trial or both, and two lists have been provided. The first is of cases that should normally be transferred to a Chancery county court, and the second is of cases that should not normally be transferred. The first list is more lengthy and comprehensive than schedule I to the Supreme Court Act 1981, which identifies the type of cases that should proceed in the Chancery Division and it also specifies several exceptions for some categories of case.


The first list can be summarised as:

Proceedings under the Companies Acts, disputes between shareholders and corporate insolvency (except winding-up proceedings by creditors);

Personal insolvency proceedings (except bankruptcy petitions, interim orders and setting aside statutory demands);

Directors' disqualification proceedings;

Claims within CPR part 56, except applications under sections 24 or 38(4) of the Landlord & Tenant Act 1954 and the Access to Neighbouring Land Act 1992;

Probate claims and proceedings relating to the rectification of wills and concerning personal representatives within CPR part 57 and proceedings relating to estates, trusts and charities within CPR part 64;

Proceedings under section 14 of the Trusts of Land and Appointment of Trustees Act 1996, except in simple cases such as joint property disputes;

Intellectual property and passing-off cases;

Complex cases relating to land or easements and involving injunctions, specific performance and declarations;

Complex cases relating to breach of restrictive covenants, breach of trust or breach of fiduciary duty where injunctions are sought or where the issues are substantial or complex;

Claims for rescission on grounds of undue influence or other equitable grounds or for rectification of documents;

Claims relating to membership of, exclusion from, or dissolution of unincorporated associations;

Cases for the dissolution of partnerships or for the taking of partnership accounts;

Other complex cases in which an account is sought;

Claims involving issues of trust, company, intellectual property, land or conveyancing law or procedure.

The second list includes:

Cases relating to residential mortgages or tenancies unless complex or involving issues of occupation by third parties;

Enforcement of charging orders;

Applications under sections 24 and 38(4) Landlord & Tenant Act 1954 and the Access to Neighbouring Land Act 1992;

Applications under the Inheritance (Provision for Family and Dependants) Act 1975.

The guidelines recognise that not all cases of a Chancery nature need to be transferred to a Chancery county court, either for case management or trial. Much will depend on the nature and complexity of the individual case. Furthermore, the question of transfer may arise at different stages of a case.


However, the objective is to enable a case to be dealt with by a judge with relevant specialist experience when this is necessary or appropriate, and this objective can usually best be achieved by a transfer to a Chancery county court.


Nevertheless, a trial can still take place at the home county court where, for example, the distances to be travelled or the convenience of witnesses make this desirable. In such a case, arrangements can be made for a specialist trial judge to sit in the home court for the purposes of the trial.


Thus there is a degree of flexibility about the transfer of Chancery-type cases. In practice, it will often not be necessary to transfer cases purely for case management purposes, particularly if Chancery counsel have already been instructed and participate in a telephone case management conference that is arranged so that counsel can discuss any suggested specialist directions with the district judge.


A similar practice works well in clinical negligence cases. Nor would a transfer for trial be necessary if a circuit judge who sits at the home court has experience of Chancery practice or where a circuit judge from a Chancery county court can arrange to sit at the home court, as envisaged in the guidelines.


If a conducting solicitor is doubtful about whether an application for transfer may be needed, he should initially raise the issue with the district judge at his home court, who will if necessary consult with the judiciary at the nearest Chancery county court. The district judge can then advise as to whether a judge with Chancery experience would be available to try the case in the home court.


District Judge Christopher Tromans sits at Plymouth Combined Court Centre