Reed Smith In-depth

The English judiciary has published a major update to the Chancery guide covering procedural matters in the Chancery Division. This is an important jurisdiction for business disputes involving company structures, breach of fiduciary duty by directors, claims arising out of the insolvency of companies, intellectual property and complex professional negligence.

Importantly for litigants, the new guide provides a closer alignment between practice in the Chancery Division and Commercial Court, along with renewed emphasis on the use of technology. This reflects the agenda of senior judiciary to: (i) improve efficiency and consistency in process across the Business and Property Courts; and (ii) embed information technology as a key aspect of dispute resolution in English High Court litigation.

We summarize some of the key themes from the new guide below, focusing on issues of general application to commercial litigators. This is not intended as an exhaustive list – the Chancery Division has a broad remit and there may be changes in the guide which affect specialist lists (such as Competition, Trusts and Probate) but are beyond the scope of this article.

Authors: Oliver Rawkins

The need for alignment

In 2017 the Business and Property Courts (B&PC) were created as a single umbrella for the jurisdictions within the English court system dealing with litigation in business, finance and property matters. Within that umbrella there are different “courts” dealing with specific work types, the most significant jurisdictions being the Commercial Court and Chancery Division. Although both courts apply the Civil Procedure Rules as their main framework, they each have specific processes developed from deep historical roots and reflective of different work types, as embodied in their separate “court guides”. This divergence in procedural practice within the B&PC causes potential internal inconsistency and difficulties for practitioners. For example, prior to the new guide the timescales for responding to an interim application might have subtle but important differences across the different jurisdictions within the B&PC.

Alignment with the Commercial Court guide?

The new Chancery guide should be seen as an important step towards aligning practices where it is appropriate to do so. Overall, it closes the gap in aspects of core procedure between Chancery and the Commercial Court. The following examples stand out:

  • Style – The guide has been completely rewritten in a style similar to that used in the Commercial Court and Technology and Construction Court guides, bringing greater clarity. Notably, key aspects of procedure are now subject to a more formalized timetable and process (e.g., pre-trial reviews (section 11)).
  • Applications – This is the area of greatest alignment. The Chancery guide now includes the same distinction found in the Commercial Court guide between ordinary applications (hearing of half a day or less) and heavy applications (hearing of half a day or more) and adopts the same timescales for the filing of evidence.
  • Statements of case – Provisions on the format and content of statements of case have been amended to largely mirror those applicable in the Commercial Court. A similar page limit will now apply – 25 pages normally and 40 pages exceptionally (albeit that unlike the Commercial Court an application for permission will not be required to exceed 40 pages (see sections 4.1 – 4.6)).
  • Case management – The case management process aligns more closely with that used in the Commercial Court, with express provision for preparation of a case summary and list of issues for trial prior to the case management conference (albeit in a less prescriptive form than the equivalent steps from the Commercial Court guide).