Changing the Chancery Division

Culture change is what’s needed by the Chancery Division of the High Court, according to the senior judge who has spent the past year reviewing its work. Lord Justice Briggs used the phrase throughout his chancery modernisation review, published just before Christmas. His message was clear: everyone involved in what aspires to be the world’s leading business and property court must get used to new ways of working – and that includes the judiciary.

The biggest culture change Briggs recommends is that cases should be run by judges, not litigants. That means claims will have to be assessed when proceedings are issued, in the same way as hospital patients face triage when they arrive at a casualty department. A major case would be assigned to a single judge who would manage all pre-trial hearings and eventually try it if necessary. This process is known as ‘full docketing’ – a docket, in US usage, being a judge’s list of pending cases.

Briggs’s recommendations have been welcomed by the senior chancery judge, Sir Terence Etherton, who commissioned the review shortly after he became chancellor of the division a year ago.

‘I will have to consider those recommendations in consultation with all levels of the judiciary within my division,’ he told me in an interview for the Gazette. ‘I will also have to consider them with the other heads of division involved in civil justice.’

The chancery courts could not go too far out on a limb, Etherton explained. But there have been huge changes since he started out at the bar nearly 40 years ago, when trusts were still a large part of a chancery lawyer’s work. There is already some docketing of very big cases, which are assigned to individual judges by the chancellor. ‘So the conversation I now have to have with my judges, the masters and registrars is to work out how to take that forward. That could come about pretty quickly.’

Full docketing is not a one-size-fits-all solution. Some claims might be assigned to a judge operating as a team with a master or registrar. Others could follow the conventional route of being managed by a master, with a High Court judge being brought in later for the hearing. A simple one-day hearing – even one involving a lot of money – might not need docketing at all.

Less demanding cases could go down to the county court while others, with a regional link, might be heard outside London. Etherton will not hesitate to send judges out to try cases in cities such as Manchester, Leeds, Birmingham and Bristol, with incidental benefits to their local economies.

Under the Briggs proposals, judges would decide not only the level at which a case should be heard but would also approve or limit the length of the trial. That struck me as a difficult adjustment for judges who were used to giving lawyers as much time in court as they want.

‘So far as fixed-end trials are concerned, you’re right: if that comes about it would be a huge culture change,’ Etherton admitted. ‘That’s the sort of thing I need to have further discussions about with my judges.’

Lawyers like the idea of tailoring written submissions to a specific judge and planning their diaries with more precision. But some judges have raised concerns with the chancellor. ‘The danger with a fixed-end trial is that somebody may get the time estimate wrong,’ he explained. A hearing couldn’t be extended to cope with unexpected circumstances if the judge had another case booked immediately afterwards.

This must be a harsher discipline in a trial court – where there are witnesses – than in an appeal court, where the hearing is usually confined to legal argument. But the whole point of setting a time limit is that the case cannot over-run.

Fixed-length trials would depend on the introduction of proper IT, Etherton insisted: the courts service was currently in discussion with software providers about setting up a system that would allow online filing and electronic listing for the Chancery Division and the other jurisdictions based in the Rolls Building. If negotiations were successful, these much-needed reforms could be introduced by the summer of next year.

We have learnt to be cynical about estimates such as these. But if anybody can cut through the bureaucracy and improve the courts’ efficiency, it is this hugely energetic former Olympic-standard swordsman.

Etherton promised to discuss fixed-length trials with judicial colleagues and pilot any reforms. ‘Everybody needs to be consulted so that the idea – which seems a very sound one – can be grounded in practical reality. If we can do it in a cost-effective and practical way, and provided it doesn’t have implications elsewhere in the system, we should try to do it.’