Just after Christmas[1] we were reminded of the old rhyme:

“Five little soldier boys going into law:

One got into Chancery and then there were four.”

 

Hamlet was not alone in castigating “the law’s delays”. In Bleak House, published in instalments in 1852-3, Charles Dickens was attacking a system which had accumulated widespread disrespect and had so far attracted very little by the way of effective reform. Inertia was the order of the day. In an early chapter he puts into the mind of Sir Leicester Dedlock the thought that although an interminable Chancery suit was a “slow, expensive, British, constitutional kind of thing”, it would be much better to leave the Court of Chancery well alone for fear that any complaint he made might encourage

“some person in the lower classes to rise up somewhere – like Wat Tyler.”

 

One of my most treasured memories is of Lord Denning himself reciting the first page of Bleak House by heart in the Old Hall of Lincoln’s Inn:

 “London, Michaelmas term lately over, and the Lord Chancellor sitting in Lincoln’s Inn Hall. Implacable November weather…

Fog everywhere. Fog up the river … fog down the river…  Fog on the Essex marshes, fog on the Kentish heights. Fog creeping into the cabooses of collier-brigs; fog lying out on the yards … fog dropping on the gunwales of barges and small boats. Fog in the eyes and throats of ancient Greenwich pensioners… fog in the stem and bowl of the afternoon pipe of the wrathful skipper… fog cruelly pinching the toes and fingers of his shivering little ‘prentice boy on deck.

The raw afternoon is rawest, and the dense fog is densest, and the murky streets are muddiest, near that leaden-headed old obstruction, appropriate ornament for the threshold of a leaden-headed old corporation: Temple Bar.  And hard by Temple Bar, in Lincoln’s Inn Hall, at the very heart of the fog, sits the Lord High Chancellor, in his High Court of Chancery.

Never can there become fog too thick, never can there come mud and mire too deep, to assort with the groping and floundering condition which this High Court of Chancery, most pestilent of hoary sinners, holds, this day, in the sight of heaven and earth.”

That was in the days when the Hall still preserved an agreeable shabbiness which has now been swept away in the Inn’s desire to make it an attractive venue for smart income-producing events, dinners and receptions and conferences and so on. Although the novel first appeared in 1852-3, it portrays scenes from about 20 years earlier[2], before the Six Clerks[3] were abolished by the Court of Chancery Act 1842, the year before the foundation stone of Lincoln’s Inn Great Hall (not mentioned in the novel) was laid.

I had never previously read beyond Chapter 3, and I usually stopped reading by the time the fog had reached the Lord Chancellor. With the luxury of retirement I have now completed the 900 pages for the first time, and I was vaguely disappointed because I had hoped to understand more clearly what the case of Jarndyce v Jarndyce was all about.   But perhaps that was part of its secret. When the heroine Esther Summerson told her guardian John Jarndyce (a remarkably sane surviving member of the Jarndyce family) that she didn’t understand “this Chancery business”, he replied:

“I don’t know who does. The Lawyers have twisted it into such a state of bedevilment that the original merits of the case have long disappeared from the face of the earth. It’s about a Will, and the trusts under a Will – or it was, once. It’s about nothing but Costs now. We are always appearing, and disappearing, and swearing, and interrogating, and filing, and cross-filing, and arguing, and sealing, and motioning, and referring, and reporting, and revolving about the Lord Chancellor and all his satellites, and equitably waltzing ourselves off to dusty death, about costs. That’s the great question. All the rest, by some extraordinary means, has melted away.””

It appears, in fact, that there were at least two Wills already in dispute before a seemingly genuine later version emerged in unusual circumstances towards the end of the novel, but by that time the whole of the estate had been swallowed up in costs.

Dickens doesn’t seem to be concerned with detail – indeed, it seems unclear why the Lord Chancellor was sitting in Lincoln’s Inn (and not Westminster Hall) at all in November, some weeks before the Michaelmas term would end on 21^st December.  He is attacking the Court of Chancery as an institution, and for that purpose details don’t seem to matter very much. In his brief Preface to the First Edition, written in August 1853, he writes:

“At the present moment there is a suit before the Court which was commenced nearly twenty years ago; in which from thirty to forty counsel have been known to appear at one time; in which costs have been incurred to the amount of seventy thousand pounds; which is a friendly suit, and which is (I am assured) no nearer to its termination now than when it was begun. There is another well-known suit in Chancery, not yet decided, which was commenced before the close of the last century and in which more than double the amount of seventy thousand pounds has been swallowed up in costs. If I wanted other authorities for JARNDYCE AND JARNDYCE, I could rain them on these pages, to the shame of a parsimonious public.”

At the start of his Preface Dickens describes how he had recently heard a Chancery judge telling a large audience that the Court of Chancery was almost immaculate, and that a recent trivial blemish or so in its rate of progress had been entirely owing to the “parsimony of the public”, which had declined to enlarge the number of Chancery judges “appointed – I believe by Richard the Second, but any other king will do as well.”[4]

A purple passage in the first chapter of the novel shows Dickens at his best:

“Jarndyce v Jarndyce drones on. The scarecrow of a suit has in course of time become so complicated that no man alive knows what it means. The parties to it understand it least; but it has been observed that no two Chancery lawyers can talk about it for five minutes without coming to a total disagreement as to all the premises. Innumerable children have been born into the cause; innumerable young people have married into it; innumerable old people have died out of it. Scores of persons have found themselves made parties in Jarndyce v Jarndyce without knowing how or why; whole families have inherited legendary hatreds with the suit… Wards of court have faded into mothers and grandmothers; there are not three Jarndyces left upon the earth perhaps, since old Tom Jarndyce in despair blew his brains out at a coffee-house in Chancery Lane.”

A little earlier there had been references to “some score” of members of the Chancery Bar being mistily engaged in one of the 10,000 stages of the endless case, and to the fact that two or three of the solicitors engaged in the case had inherited it from their fathers who had made a fortune by it.

The solicitors in court are seen ranged in a line with

“bills, cross-bills, answers, rejoinders, injunctions, affidavits, references to masters, master’s reports, material of costly nonsense piled before them.”

There were still 18 members of the Bar (each armed with a “summary of 180 sheets”) wanting to address the Lord Chancellor when he adjourned the case for three weeks at the beginning of the book. Dickens did not mince his words when he wrote:

“The one great principle of the English law is to make business for itself. 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.”

When John Jarndyce counselled his wards to expect nothing out of the lawsuit he said:

“All through the deplorable cause, everything that everybody in it, except one man, knows already, is referred to that one man who don’t know it, to find out – all through the deplorable cause, everybody must have copies[5], over and over again, of everything that has accumulated about it in the way of cartloads of papers (or must pay for them without having them, which is the usual course, for nobody wants them); and must go down the middle and up again, through such an infernal country-dance of costs and fees and nonsense and corruption, as was never dreamed of in the wildest visions of a Witch’s Sabbath. Equity sends questions to Law, Law sends questions back to Equity; Law finds it can’t do this, Equity finds it can’t do that; neither can so much as say it can’t do anything without this solicitor instructing and that counsel appearing for A, and this solicitor and that counsel appearing for B, and so on through the whole alphabet, like the history of the Apple Pie… And we can’t get out of the suit on any terms, for we are made parties to it, and must be parties to it, whether we like it or not.”

Tom Jarndyce, from whom John inherited Bleak House, had blown his head off after living there

“shut up, day and night, poring over the wicked heaps of papers in the suit, and hoping against hope to disentangle it from its mystification and bring it to a close”.

If he could not understand what was going on, what hope have we?

Some clues to the alleged absurdities of Chancery practice can be gleaned from Dickens’ story of Mr Gridley, “the man from Shropshire” whose father had left his farm and farmstock to his mother for life, with the estate coming to him following his mother’s death apart from a £300 legacy for his brother.  When the mother died, there was never any dispute about the validity of the father’s will, but Mr Gridley sought to set off against the £300 legacy the value of free board and lodging his brother had received.

His brother filed a bill of complaint in Chancery, and although the issue in dispute was a very simple one, no fewer than 17 people were joined as defendants: the Chancery Master even raised the question (never previously raised by anyone else) whether Mr Gridley was really his father’s son. There came a stage (when the costs were already three times the £300 legacy) when the Master discovered someone else who should have been joined as a defendant, and the suit had to start all over again. His brother would have surrendered the whole of his legacy in order to escape the incidence of further costs, but there was no way in which he could do so, and eventually, as in Jarndyce v Jarndyce the whole estate was dissipated in costs.

What have we learned from all this?

We certainly learned that court officials must have real jobs and be remunerated by the payment of salaries, so that they are not dependent on fees from suitors.  We learned that the law’s delays could be mitigated, not only by the appointment of extra judges (if the need for them really existed), but also, and crucially, by simplifying the courts’ procedures: the Judicature Reforms in 1873-6 abolished the independent Court of Chancery (with, from 1851 onwards, its own two Lords Justices sitting in the new Court of Appeal in Chancery) and made the Chancery Division one of five divisions of the new High Court of Justice (with a new Court of Appeal serving all five). In each of these divisions the judges could administer both law and equity without litigants having to bounce about in separate actions in the different courts, depending on the particular remedy they were seeking at the time.

But despite all this restructuring, in my early days at the Bar Chancery judges and practitioners always seemed in a certain sense to be a race apart.   I remember attending a Christmas party in the late 1960s when a partner in Hempsons (the solicitors for the Medical Defence Union) told me he had been trying to locate a member of the Chancery Bar to give specialist advice to a visiting South African client, only to be told by clerks in all five of the leading Chancery sets he customarily used that nobody at all would be available until the next legal term started on 11^th January.

Vacation business formed such a tiny part of Chancery consciousness in the 1960s that there was no Vacation Chancery Judge as such, and the Queen’s Bench Vacation Judge did double duty.    On 16^th August 1967, I appeared before Mr Justice Geofffrey Lane, a very new Judge of the Queen’s Bench Division, on what was really an appeal[6] in a wardship matter from a Chancery Master.   It was slightly disconcerting to be kept waiting while the Master explained to the Judge what the case was all about, and sat below him when we were eventually called on to argue it.

And in the late 1980s, when we were interviewing a clerk in Chancery Chambers whose father had come to those Chambers as a 14-year old boy in 1916 and retired as senior clerk in 1976, I commented that he must have seen a lot of changes  in his time.   I received the response that his father hadn’t seen any: it was only in 1976 that things had started moving, and they had been moving fast ever since.

Vestiges of former Chancery mindsets lingered on, however, even after the reforms recommended by Sir Peter Oliver’s 1979-1981 review of Chancery practice had been set in motion. It would, I believe, have been unthinkable for a judge of the Queen’s Bench Division to delay for 20 months before delivering a reserved judgment, as occurred in one case with which I was concerned in 1998.

Modern Chancery judges and practitioners have all said “Good-bye to All That” and a very good thing too. It is indeed, a reforming Chancery judge, Lord Justice Briggs, whose report for the Lord Chief Justice on the streamlining of court practices in the modern age is due any day now. This report is likely to be so radical that Sir Leicester Dedlock would turn in his grave for fear of civil insurrection if he ever heard about it.

That is enough for today.  In another blog I will write about the need for a greater understanding of the value of mediation in resolving inheritance disputes, however intractable: I helped to resolve many of them myself during the days I practised as a mediator after I had retired from the Bench.

 

 

[1] Agatha Christie’s story, renamed “And Then There Were None”, was filmed in three instalments by the BBC over the Christmas holiday in 2015.

[2] Although Sir William Holdsworth ascribed a date of 1827 to the events of the novel, the description of a burgeoning railway system at the start of Chapter 55 suggests a slightly later date.

[3] The Six Clerks’ offices were on the west side of Chancery Lane, to the north of Lincoln’s Inn Hall. They, and their under-clerks, originally acted as attorneys for all the suitors in the Court of Chancery in addition to the official business they were responsible for, but as the scale of Chancery business increased, Solicitors of the Court of Chancery took over that role. The work of the Six Clerks in assisting litigants lacking legal capacity is now undertaken by the Official Solicitor.

[4] This is possibly a reference to the problem that occurred after the retirement of Wigram VC in 1850. He could not be replaced until the enactment of the Court of Chancery Act 1851 made it possible to appoint a third Vice-Chancellor.   Between 1813 and 1841 there had only been one Vice-Chancellor to assist the Lord Chancellor and the Master of the Rolls with the judicial work of the Court.

[5] I had not appreciated the scale of the work that involved so many people copying all these documents individually by hand until I read Chapter 10 of Bleak House.

[6] When a litigant was dissatisfied by a Chancery Master’s decision, he asked for the matter to be referred to a judge.