Regardless of the changes that will occur when the new Business Court is introduced, Chancery and commercial Chancery experts will always be in demand, argues Robert Graham-Campbell

There is a lively debate among lawyers at present concerning the introduction of the new Business Court. While there are many details still to be determined, it will see the Commercial Court and Chancery Division operate from the same building in Fetter Lane in the next few years. Some argue that, in time, this coming-together will remove the organisational division between the two sections and, in so doing, see the terms 'Chancery' and 'commercial' falling into disuse with the adoption instead of a simpler generic description, for example 'business law'.

If this proves to be the case, what will it mean for those barristers and barristers' sets that describe themselves as specialists in Chancery and Chancery commercial as opposed to commercial law? Will they simply all become experts in the bewilderingly broad term 'business law'?

Looking first to Chancery work, it hardly needs saying that there is much more to the work currently carried out in the Chancery Division (and virtually nowhere else) than is adequately encompassed in a phrase such as 'business law'. Probate, residential property, private trusts and tax disputes are ready examples. The expertise in such work will be found among those who are currently called Chancery practitioners. Whether or not that label survives, there will remain the need for specialist advocates and advisers with expertise in these areas that are distinct from general business or commercial ones.

But it is also true that a considerable amount of the work currently done in the Chancery Division has a business or commercial flavour and is work which many might equally expect to be done in the Commercial Court. The substantial volume of this type of work in the Chancery Division has given rise in recent years to the label 'commercial Chancery'. Are those barristers and chambers who undertake this type of work (whether in the Chancery Division or the Commercial Court) in truth general business or commercial lawyers differentiated only by an arbitrary organisational distinction as to the location in which they practice?

If so, it would seem to be simply a case of definitions. But while there is a generally accepted view of what is meant by specialists in commercial litigation, the term commercial Chancery litigation is far less well understood. It is not helped by the fact that neither category is really an area of law at all.

So what does 'commercial Chancery' actually mean? When asked, even the most seasoned of litigators seem to have an ill-defined understanding of the word 'Chancery' (a word which has been in the English language for around 700 years), let alone 'commercial Chancery'. In trying to give content to the term, practitioners often list the types of cases currently heard in the Chancery Division (itself formed over 100 years ago). This list might include (among the traditional Chancery specialisms) examples such as charities, pensions, trusts, wills and probate.

It is tempting to try to define 'commercial Chancery' in a similar way, as embracing what today might be considered the more business-related examples, including banking, personal and corporate insolvency, company law and directors' duties, fraud, injunctions, asset tracing, fiduciary duties, accessory liability, constructive trusts, real estate, partnership, professional negligence, intellectual property and tax. But this non-exhaustive list is so long and apparently lacking in any common theme that it is hardly surprising practitioners struggle with definitions. Sometimes the unifying themes are said to be the principles of equity and equitable remedies. Whilst mercifully short, this is hardly enlightening or even very accurate.

As it seems to be difficult to define such terms, does this mean that these are not really different disciplines at all? The answer lies not in labels but in the needs of business litigation, where the demand for what is presently called Chancery expertise is far from fading away and is, if anything, on the increase. The reality is that in today's world, litigation involving businesses almost invariably contains aspects which can be labelled commercial or Chancery. As a consequence, the term 'commercial Chancery' describes a large but distinct area within the almost limitless plain of commercial or business litigation where the particular specialist expertise of the Chancery practitioner is of relevance and value. Importantly, commercial Chancery remains distinguishable from general commercial work in that it describes the array of business litigation that requires specific expertise of the types described above.

To take an example: imagine a mortgage fraud perpetrated by a property developer on a large high-street bank. The bank's claim to recover its misappropriated monies would quite commonly be brought in the Commercial Court and would readily be described as commercial. Yet both the subject matter of the fraud, a mortgage transaction, and the relief sought (being likely to involve concepts such as tracing as constructive trusts), are really creatures of the Chancery Division. The commercial Chancery practitioner is uniquely placed to handle such a claim.

Why, then, is business litigation giving rise to an increased demand for Chancery expertise? One reason may be the use of ever-more complex corporate and financial structures in an ever-more international market – for example, involving trusts and other structures in low-tax jurisdictions. Where such structures become the subject of litigation, expert knowledge of commercial matters, litigation and trusts law is clearly an advantage. Similarly, insolvency questions or directors' fiduciary duties often feature in commercial litigation. Another reason may be the increasing tendency of the courts to mould and deploy more traditional Chancery concepts in novel situations thrown up by the modern business world, such as international fraud work, where it is from the equitable concepts of tracing and of proprietary remedies that the court derives its tools for granting relief.

In conclusion, for so long as the need for Chancery expertise in the context of business litigation remains, there will also be the need for specialist advocates and advisers distinct from general business or commercial ones. And that will be so whether or not the label 'commercial Chancery' survives and whatever the name of the court to which the relevant work is assigned. Those who can offer a genuine combination of cross-disciplinary expertise will be in demand. It follows that it is the commercial Chancery expert, rather than the general commercial litigator, who has the edge. So while the distinction between the divisions of the courts and the terms commercial Chancery and commercial may well be blurring, the clear differences in expertise are not.

Robert Graham-Campbell is chief executive of Maitland Chambers.