Chancery work is a big deal at the Bar. Many struggle to define it, but one set certainly doesn't: XXIV Old Buildings takes us on a walk down Chancery Lane... How would you define Chancery work, based on your work?
How would you define Chancery work, based on your work?
James Fennemore: If you have enjoyed studying the core private law topics of contract and trusts law, then you’re likely to enjoy Chancery work. It’s important not to get too hung up over the label, which is more a quirk of how our courts were historically structured than a clear or rigid descriptor of what Chancery barristers actually do. That said, Chancery work generally involves disputes over property – in its very broadest sense. It includes litigation over wills and the administration of estates; real property disputes; banking and financial services law; disputes concerning structures that have developed for the management of property and business, like trusts, companies, and partnerships; and insolvency, both of individuals and companies. Many cases also involve fraud and asset tracing, especially where such claims overlap with other areas of Chancery practice.
"Most Chancery work involves the principles and concepts of contract and trusts law, applied in different scenarios."
Erin Hitchens: It is difficult to give a precise definition. Most Chancery work involves the principles and concepts of contract and trusts law, applied in different scenarios. It spans across many industries and sectors. For example, in additional to the more traditional probate, trusts and property work, we specialise in financial services, civil fraud, aviation and travel law.
Edward Cumming: Chancery work is, simply, work that might be litigated in the Chancery Division of the High Court (now part of the new Business and Property Courts of England and Wales). It includes real property, landlord and tenant etc, but also sophisticated ways of holding property, such as companies, partnerships, trusts etc, and what happens to property at the end of an entity’s life, whether that is its ‘legal life’ (because of insolvency – i.e. bankruptcy or liquidation) or its ‘natural life’ (because someone has died – i.e. probate and inheritance disputes).
What’s the difference between 'traditional' and ‘commercial’ Chancery?
EC: Broadly speaking ‘traditional Chancery’ encompasses the aspects of Chancery work that might concern the lives of private individuals (often called ‘private client’ work) – i.e. trusts, probate, lack of capacity issues, residential land issues etc. ‘Commercial Chancery’ concerns the aspects of Chancery work involved in the world of business – i.e. company law disputes, corporate insolvencies, large commercial trusts, lots of banking and financial services disputes and recovering assets when a business has been defrauded. Increasingly over the past few decades the distinction between the work done by ‘commercial Chancery’ barristers and those who would style themselves simply as ‘commercial’ barristers has diminished, both because principles of equity – which is at the core of many issues that arise in the Chancery Division – have played a greater part in commercial life, and because there has been a greater recognition that the expertise and experience of ‘commercial Chancery’ barristers can often be invaluable in what might often be thought of as pure ‘commercial’ cases.
What’s the difference between commercial Chancery and regular commercial work at the Bar?
EH: There is a great deal of overlap between commercial Chancery and regular Chancery work. Quite often large commercial cases, particularly those involving fraud or allegations of a breach of any kind of fiduciary duty or obligation, will involve principles of Chancery work.
EC: If you do pupillage at a commercial Chancery set, your experience of broad business litigation, banking and finance disputes, fraud claims, and asset recovery proceedings (i.e. tracking down and securing ill-gotten gains) is likely to be similar to that of a pupil at a ‘pure commercial’ set. On top of that you will probably have greater exposure to battles for boardroom control, insolvency disputes, and other company, trust and property litigation. Go to the 'pure commercial' Bar though if you really want to do shipping disputes, insurance and re-insurance litigation, and other commodities work.
Can you give an example of a recent case you’ve worked on? What were the facts of the case?
JF: I am currently working on a case where I represent hundreds of beneficiaries of three controversial employer financed retirement benefit schemes, all of which are governed by Jersey law. The former trustee of the schemes purported to sell the entire trust fund to a newly incorporated company for a fraction of the book value of the assets. My clients allege that this transaction was a breach of trust and a fraud on the power, and are seeking the return of the assets to the trust, and compensation from the recipient and former trustee. The case is listed for trial in the High Court in early 2023.
"I am working on a case involving fraud on the part of a personal representative of an estate. She obtained a grant from the probate office fraudulently…She then distributed some of the money…among her preferred family members and kept the majority for herself…"
EH: I am working on a case involving fraud on the part of a personal representative of an estate. She obtained a grant from the probate office fraudulently, despite knowing full well that a will existed appointing my client as executor. She then distributed some of the money in the estate among her preferred family members and kept the majority for herself, which she spent on cruises and other untraceable benefits. My client obtained judgment against her for the whole amount she took from the estate, as well as orders requiring the other family members to repay what they had received.
What different parties are typically involved in a Chancery case?
JF: To me, one of the most attractive features of working at the Chancery Bar is the sheer breadth of the clients involved: at the commercial end the parties may be the directors and shareholders of a company, or a bank and its clients; at the traditional end, they may be different members of a family in a dispute over a relative’s will, or a landlord and her tenant. Much Chancery work also involves international clients – whether a foreign company or investor or the trustees or beneficiaries of a trust outside the jurisdiction.
"I am also instructed on a lot of disputes between shareholders who incorporate a company for the purpose of running a local business – for example a restaurant – and then fall out and need to unravel the mess that ensues."
EH: I have worked for a whole range of people, with very different levels of commercial and business experience. The parties to traditional Chancery work are frequently individuals: for example, family members disputing a will, beneficiaries seeking to remove the trustees of a family trust or joint owners of property trying to protect their share in the event of their co-owner’s financial difficulties. On the commercial side, you might be acting for a large international company with an in-house legal department. On the other hand, I am also instructed on a lot of disputes between shareholders who incorporate a company for the purpose of running a local business – for example a restaurant – and then fall out and need to unravel the mess that ensues. In such cases people frequently haven’t given much thought to their respective rights and expectations and there is little documentation.
EC: The variety of different clients is one of the things that I like most about practising at the Chancery Bar. One day, I can be acting for a FTSE 100 company in a dispute regarding a takeover that has turned sour, the next I can be acting for an individual whose sister is trying to cut her out of the family wealth following the death of a parent.
What’s the balance between court time and written work in a typical month? Can you give a percentage?
JF: This varies substantially month by month, but I tend to have some sort of hearing about once a fortnight. When larger matters progress to trial, however, you end up in court every day, sometimes for quite long periods of time.
EH: Chancery work tends to involve complex issues and matters of law, which means that the preparation time for court is longer and court hearings usually last longer than in some other areas of law. However, we are also quite often required to go to court on short notice for urgent applications – for example, an order freezing a party’s assets to prevent them from dissipating them.
EC: There is no typical month, so it can vary hugely, but on average I would say that I am in court for a substantial hearing every other week. This excludes periods when I might have a two-month or three-month trial (of which I have had three in the last three years) when I would be in court every day.
What are the typical tasks a new junior does on a Chancery case?
JF: Where I am sole counsel, I spend my time preparing for and appearing in hearings (in both the High Court and County Court); reading papers, researching the law and preparing advice or drafting a pleading; and discussing cases with solicitors and lay clients in conference. When led by a silk, work usually involves focusing on a smaller chunk of a case (working on a witness statement or researching a particular point of law that has arisen), or preparing first drafts of key documents (such as skeleton arguments or pleadings).
And what are the typical tasks of a senior junior?
EH: If I am sole counsel on a matter I will have complete responsibility for all aspects. This will usually include advising the clients before the issue of proceedings, drafting pleadings, advising generally upon any applications which might need to be made as the matter proceeds towards trial and attending the hearing of those applications. Before trial a skeleton argument will need to be prepared and, obviously, submissions for the trial itself. In matters where I am led by a silk, it really does depend! Frequently I will prepare the first draft of the pleadings and of any applications that are to be made. Often I will do the advocacy at some interim hearings or at the case management conference. In the lead up to trial, a silk will usually expect their junior to assist with the skeleton argument, either by producing a first draft or focusing on particular issues.
And of a KC?
EC: A KC leads a case both in and out of court. The KC will set strategy, settle pleadings, skeleton arguments and major advice (always, of course, in liaison with the wider team) and conduct (most) oral advocacy and cross-examination in court.
What are the latest trends affecting the Chancery Bar?
JF: No doubt in part due to ageing populations around the world, I increasingly see issues of mental capacity cropping up in disputes in different and interesting ways. One of the mainstays of traditional chancery practice has historically been probate disputes, in which it is alleged that the deceased person did not have capacity to execute their most recent will. But there are other areas in which the issue of capacity arises: one of my current cases is a dispute concerning a Bahamian trust, where the settlor of the trust retained a power to appoint the trust protector. There is an argument over whether the settlor had capacity to exercise this power in his later years, resulting in a dispute over which of two siblings now has effective control over the very valuable trust structure (which owns shares in a valuable Hong Kong company).
"Following the huge increases in house prices over the past couple of decades, a large number of families now have an asset worth litigating over."
Why should a student take an interest in Chancery work, given it’s perceived as a complicated and cloistered field? What makes this an interesting area to work in?
JF: ‘Complicated’ is good! So many people say that they are attracted to the Bar because they want to spend their life doing rewarding intellectual work. Chancery work exposes you to a huge range of legal and tactical issues, and a huge range of clients, and that makes it constantly engaging and satisfying. If it’s perceived as cloistered, that’s just an issue of unhelpful Dickensian semantics – to be successful, Chancery barristers have to be able to engage with the practical needs of sophisticated clients, and so while the work is unparalleled in its intellectual attractiveness, the realities of the job are far from rarefied.
EH: Every case has its own issues and complications and you will rarely come across the same problem twice. Students who enjoy solving problems and thinking outside the box should not be put off by the reputation of Chancery work for being complex! At the same time, part of the skill of a Chancery barrister is putting complicated law into simple language for the benefit of lay clients.
"It is intellectually demanding, but also rewarding, and involves some of the largest, most exciting and hardest-fought civil litigation."
EC: It may be complicated, but it isn’t cloistered. Chancery work is fascinating. It is intellectually demanding, but also rewarding, and involves some of the largest, most exciting and hardest-fought civil litigation. The wide range of clients that you might act for, means you always need to be sensitive to, and aware of, your clients’ ultimate goals and are likely to have a varied and stimulating set of issues with which to grapple.
What can a student do now to be a good candidate in a year or two for a Chancery pupillage?
JF: Make sure to work hard and get the grades you deserve in your academic qualifications; get some first-hand experience of what Chancery work entails by doing a good spread of mini-pupillages so that you’re coming at applications from an informed perspective; and start building the skills required to be an effective advocate by participating in mooting, volunteering at FRU, or exploiting other opportunities for persuasive speaking and writing.
"It is also work trying to get some non-traditional advocacy or public speaking opportunities to broaden your experience of effective advocacy."
EH: We look for candidates with strong academic qualifications, sound common sense and judgment, and an interest in our areas of work. This means that in addition to striving to obtain good grades in your university degree, you should try to ensure that you obtain some experience to demonstrate your commitment to a career at the Bar and your advocacy skills. Doing mini-pupillages is an obvious way to gain an insight into life at the Bar. Most academic institutions and the Inns of Court offer mooting opportunities. However, it is also worth trying to get some non-traditional advocacy or public speaking opportunities to broaden your experience of effective advocacy.
EC: It wouldn’t be the most exciting way to spend a Sunday afternoon, but I think it might be useful to get into a habit of – every now and then – looking up some recent Chancery cases that have been determined by the Court of Appeal, and then reading both the Court of Appeal’s decision and the first instance decision, both to familiarise yourself with the way of thinking that is often followed in Chancery litigation and to familiarise yourself with some of the issues that arise.
This feature was first published in November 2018.