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Evan Whitton
11 August, 2006  
Sunday night at the Whittons

Bleak House is a drama, a soapie, a satire and a celebration of the adversary system. A century and a half after Charles Dickens’ blockbuster, the system it pilloried is still travelling quite nicely, thank you

imageFor those interested in the law, Sunday night is Bleak House. We fill a beaker of Armagnac, set fire to a long Cuban, and sit back to enjoy the triumph of the adversary system, and the case that never ends.

And why not? There is Shakespeare and there is Dickens, and Bleak House, which came out in 20 monthly instalments from March 1852 to September 1853, is Dickens’ masterwork. Or so says Geoffrey Tillotson in an afterword to the 1964 Signet edition:

“Dickens was the supreme literary genius of his time, and for all the dissimilarities, something like the equal of Shakespeare … Bleak House is the finest literary work the 19th century produced in England … Dickens had a Shakespearean fertility. He could invent personages seemingly without effort. There are more than 50 in this novel alone.”

imageAn added bonus for mildly insecure beaks, or those planning to hand down dodgy decisions, is the lesson in hauteur sketched by Ian Richardson (pic) as sole judge of the court which was one of our better legal jokes.

When Richard II made the royal secretariat, the Chancery, a court of equity in the 1380s, the Chancellor and his bagmen naturally interpreted fairness to mean extorting bribes from both sides. He was a politician and (until 2005) sole selector of British judges. We call that the separation of powers and the independence of the judiciary.

As we know (Justinian June 14, 2005), Dickens based Jarndyce v Jarndyce on Jennens v Jennens, a then celebrated case concerning an estate worth £500 million today and a drawn-up but unsigned will.

Jennens ran from 1798 until 1915, i.e. until Chancery lawyers had completed their obligation to trouser the entire £500 million. Hence a version of the doggerel used by Ms A. Christie in her novel with the deplorably racist title, Ten Little Niggers (1939):

Five little nigger boys went to the law.
One got in Chancery,
And then there were four.

Which of the 10 Chancellors who sat on Jennens before 1852 did Dickens have in mind? It may have been Charles Pepys, first Earl of Cottenham, holder of the Great Seal 1836-41 and 1846-50, but I like to think it was The Great Procrastinator himself, John Scott, first Earl of Eldon (1751-1838).

imageWe revere Lord Eldon (seen here) for his justification of the adversary system – it seeks the truth and contests of liars are the best way to find it – and for his contempt for litigants. In Evil Deeds (1998), jurist B.S. Dawson notes his decision – no doubt delivered with appropriate hauteur – in Earl of Radno v Shafto (1805):

“Having doubts upon this will for twenty years, there can be no use taking more time to consider it.”

Eldon had the carriage of Jennens for 25 years, 1801-06 and 1807-27, and his approach to litigation was undoubtedly still a byword among law clerks when Dickens, 16, worked as a runner for Ellis & Blackmore, of 5 Holborn Court, in 1827-28.

In The Making of Charles Dickens (Longmans Green, 1967), Christopher Hibbert noted some of the great legal types observed by Dickens.

The namesake of this organ’s distinguished legal analyst, Tulkinghorn, is “mechanically faithful without attachment, and very jealous of the profit, privilege and reputation of being master of the mysteries of great house”.

imageCharles Dance, who plays Mr Tulking’orn with admirable menace (pic), was even more lavish in his praise:

“I think he’s a complete shit. He doesn’t have a redeeming feature in his make-up. He’s a snob, a social climber and a misogynist, really a very unpleasant man.”

But surely Dickens’ applause for Mr Vholes (Dermot Crowley), who got a nice piece of the Jarndyce action, was bit over the top. Hibbert wrote:

” [Mr Vholes] is but one of a long line of unpleasing attorneys whom Dickens saw as a ravenous flock of birds of prey, an avaricious tribe of extortioners making an unsavoury living out of what was in effect, ‘essentially a form of considered and organised oppression’ dedicated to one great principle – ‘to make money for itself’.”

Of the system itself, Hibbert says:

“When Dickens wants to symbolise the just fate of a corrupt legal system … he chooses to depict an old half-demented rag-and-bone dealer, the self-styled Lord Chancellor Krook [Johnny Vegas] ... dying of ‘Spontaneous Combustion’ amongst his jumbled collection of mouldy law books, bits of cracked parchment, ink bottles, and skinned cats’.”

The triumph of the adversary system is of course that, a century and a half after Bleak House, it has not combusted, spontaneously or otherwise, and that Jennens sailed on, unperturbed, for another 63 years.

imageOn the other hand, the pong from some recent cases, e.g. BCCI v Bank of England, has assailed some sensitive nostrils. Justice Sir Gavin Lightman, of the British High Court’s Chancery Division, and former Chancery judge Sir Hugh Laddie (seen here) have lately said it may be time to try the system across the water, where trained judges dispose of litigation rather more expeditiously than Jennens or BCCI.

Is it remotely possible that by November 2015, the 800th anniversary of the moment when Europe insanely decided to give truth a chance, the adversary system will have gone the way of Krook?

Just in case, it may be prudent for litigation lawyers to go their hardest while the going is good. But when have they not?


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