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Evan Whitton
14 June, 2005  
When a loan shark's estate got chewed by the water sharks

After 200 days of opening submissions, lawyers in the BCCI v Bank of England case made a useful start. Can we hope for the re-emergence of some decent, lengthy litigation? Maybe something approaching the 117 years it took to dispose of Jennens v Jennens

It sounds like a scene from a latter day reworking of Charles Dickens’ legal satire in Bleak House. Today, lead counsel for the Bank of England will sit down after delivering what is believed to be the longest speech in British legal history.”

Simon Bowers, The Guardian Wednesday, May 25, 2005

New champion Nick Stadlens opening drone took 119 sitting days, and effortlessly trumped the 80 days his adversary, Gordon Pollock QC, for the liquidators of Bank of Credit and Commerce International, took for his.

Mr Bowers unfortunately did not answer important questions. Did the Hon Mr Justice Tomlinson avoid recumbency? And if so, how?

The lawyers in the case have clearly made a useful start, and perhaps their great grandchildren will surpass even Jennens v Jennens, which was the model for the Bleak House marathon, Jarndyce v Jarndyce.

imageJennens began in 1798, 250 years after Henry Brinkelow (d. 1546) noted: “The lawyer can not vnderstond the matter tyl he fele his mony”, and four years after an equally acute observer on The Sporting Magazine reported:

“A water lawyer, or in plainer terms a shark, was caught last month near Workington.”

Appropriately enough, Jennens concerned the estate of a loan shark named William Jennens. He kept on hand 20,000 (about $A6 million today) of the readies, and plied his trade in London’s gambling dens. He was the richest commoner in England, worth 5 million, about $A1.5 billion of our money.

Jennens, 98, unmarried, went to a solicitor to make a will, but forgot to take his spectacles, and the solicitor’s did not fit. He died a few days later, on Tuesday, June 19, 1798, the unsigned will still in his pocket.

A further problem was that Jennens’ grandfather, Robert, had married twice and imposed the same name, Robert, on boys from each marriage. Lawyers for alleged relatives of William Jennens flooded into the anciently corrupt Chancery Court.

Jennens v Jennens was still going in 1812 when Dickens was born, in 1827-28 when, as a clerk at Ellis & Blackmore, he acquired his abiding love of lawyers, in 1852-53 when he wrote Bleak House, and in 1870 when he died.

It ended in 1915, 117 years after it began, but only because generations of water lawyers had “devoured” the entire estate.

The case had thus been going for a mere 55 years when it drove Dickens to enunciate in chapter XXXIX of Bleak House the principle which kiddies learn on their first day at trade school for aspiring herpetoids:

“The one great principle of the English law is to make business for itself [i.e. lawyers]. There is no other principle distinctly, certainly and consistently maintained through all its narrow turnings. Viewed by this light it becomes a coherent scheme, and not the monstrous maze the laity are apt to think it. Let them but once clearly perceive that its grand principle is to make business for itself at their expense, and surely they will cease to grumble.”

By contrast with Jennens, Jarndyce, BCCI v The Old Lady, and a million other interminable civil actions, former Justice Russell Fox QC has noted an amazing fact about civil litigation in that very peculiar country, France. In Justice in the 21st Century (Cavendish 2000), he wrote:

” the whole case may be disposed of in less than a day overall; relatively few occupy much more. In other continental countries, and in Japan, the position is much the same.”

That raises profoundly disturbing questions. What on earth is wrong with French lawyers? Dont they understand the Dickens Principle? Cant they fele the monnaie?

The answer, sadly, is that in France trained judges, not trained lawyers, control the litigation process.