Swynfen will case
Encyclopedia
The Swynfen will case was a series of English
trial
s over the will
of Samuel Swynfen that ran from 1856 to 1864 and raised important questions of ethics
in the legal profession.
, Staffordshire
, died in 1854 and, in his will, left £60,000 (£ in present-day terms) to his widowed daughter-in-law Patience Swynfen. However, Samuel possessed another large estate
that was not mentioned in his will. Patience claimed that too.
However, Frederick Hay Swynfen, Samuel's nephew, also claimed the estate. Litigation followed with eminent barrister
s Sir Frederick Thesiger
representing Patience, and Sir Alexander Cockburn
, the nephew. However, contrary to Patience's instructions, Thesiger negotiated a settlement with Cockburn and put it to the judge
. Patience was furious and succeeded in having the agreement set aside and a new trial listed. Dismissing Thesiger, Patience instructed a young and little known barrister named Charles Rann Kennedy
, promising to pay him £20,000 (£ in present-day terms) if he succeeded in her cause.
Spurred by the incentive and the fact that he was engaged in a sexual relationship with Patience, Kennedy won the estate. However, she went on to marry a Charles Broun and then to declare that she had no intention of paying Kennedy.
Kennedy sued and won, but his claim was overturned on appeal
on the grounds that his contingency fee agreement under another name offended ancient prohibitions on champerty and maintenance
. In the case of Kennedy v. Broun, Sir William Erle
CJ
held that the relationship between client and barrister
was not a contract
. Patience now sued Thesiger over his original professional misconduct. Further, she alleged that Sir Cresswell Cresswell, the judge
in the original trial, had induced Thesiger's agreement to a settlement by suggesting that he had formed an unfavourable opinion of Patience's case. Her claim was unsuccessful.
England and Wales
England and Wales is a jurisdiction within the United Kingdom. It consists of England and Wales, two of the four countries of the United Kingdom...
trial
Trial (law)
In law, a trial is when parties to a dispute come together to present information in a tribunal, a formal setting with the authority to adjudicate claims or disputes. One form of tribunal is a court...
s over the will
Will (law)
A will or testament is a legal declaration by which a person, the testator, names one or more persons to manage his/her estate and provides for the transfer of his/her property at death...
of Samuel Swynfen that ran from 1856 to 1864 and raised important questions of ethics
Ethics
Ethics, also known as moral philosophy, is a branch of philosophy that addresses questions about morality—that is, concepts such as good and evil, right and wrong, virtue and vice, justice and crime, etc.Major branches of ethics include:...
in the legal profession.
The case
Samuel Swynfen of Swinfen HallSwinfen Hall
Swinfen Hall is an 18th century country mansion house, now converted into an hotel, situated at Swinfen, in the Lichfield District of Staffordshire in England...
, Staffordshire
Staffordshire
Staffordshire is a landlocked county in the West Midlands region of England. For Eurostat purposes, the county is a NUTS 3 region and is one of four counties or unitary districts that comprise the "Shropshire and Staffordshire" NUTS 2 region. Part of the National Forest lies within its borders...
, died in 1854 and, in his will, left £60,000 (£ in present-day terms) to his widowed daughter-in-law Patience Swynfen. However, Samuel possessed another large estate
Estate (law)
An estate is the net worth of a person at any point in time. It is the sum of a person's assets - legal rights, interests and entitlements to property of any kind - less all liabilities at that time. The issue is of special legal significance on a question of bankruptcy and death of the person...
that was not mentioned in his will. Patience claimed that too.
However, Frederick Hay Swynfen, Samuel's nephew, also claimed the estate. Litigation followed with eminent barrister
Barrister
A barrister is a member of one of the two classes of lawyer found in many common law jurisdictions with split legal professions. Barristers specialise in courtroom advocacy, drafting legal pleadings and giving expert legal opinions...
s Sir Frederick Thesiger
Frederic Thesiger, 1st Baron Chelmsford
Frederic Thesiger, 1st Baron Chelmsford PC KC FRS was a British jurist and Conservative politician. He was twice Lord Chancellor of Great Britain.-Early life:...
representing Patience, and Sir Alexander Cockburn
Sir Alexander Cockburn, 12th Baronet
Sir Alexander James Edmund Cockburn, 12th Baronet Q.C. was a Scottish lawyer, politician and judge. A notorious womaniser and socialite, as Lord Chief Justice he heard some of the leading causes célèbres of the 19th century.-Life:Cockburn was born in Alţâna, in what is now Romania and was then...
, the nephew. However, contrary to Patience's instructions, Thesiger negotiated a settlement with Cockburn and put it to the judge
Judge
A judge is a person who presides over court proceedings, either alone or as part of a panel of judges. The powers, functions, method of appointment, discipline, and training of judges vary widely across different jurisdictions. The judge is supposed to conduct the trial impartially and in an open...
. Patience was furious and succeeded in having the agreement set aside and a new trial listed. Dismissing Thesiger, Patience instructed a young and little known barrister named Charles Rann Kennedy
Charles Rann Kennedy
Charles Rann Kennedy was an English lawyer and classicist, best remembered for his involvement in the Swinfen will case and the issues of contingency fee agreements and legal ethics that it involved.-Life:...
, promising to pay him £20,000 (£ in present-day terms) if he succeeded in her cause.
Spurred by the incentive and the fact that he was engaged in a sexual relationship with Patience, Kennedy won the estate. However, she went on to marry a Charles Broun and then to declare that she had no intention of paying Kennedy.
Kennedy sued and won, but his claim was overturned on appeal
Appeal
An appeal is a petition for review of a case that has been decided by a court of law. The petition is made to a higher court for the purpose of overturning the lower court's decision....
on the grounds that his contingency fee agreement under another name offended ancient prohibitions on champerty and maintenance
Champerty and maintenance
Champerty and maintenance are doctrines in common law jurisdictions, that aim to preclude frivolous litigation. "Maintenance" is the intermeddling of a disinterested party to encourage a lawsuit...
. In the case of Kennedy v. Broun, Sir William Erle
William Erle
Sir William Erle PC QC FRS was an English lawyer, judge and Whig politician.-Early career:Born at Fifehead Magdalen, Dorset, William was the son of the Rev. Christopher Erle of Gillingham, Dorset and Margaret née Bowles, a relative of the poet William Lisle Bowles. His younger brother Peter Erle...
CJ
Chief Justice of the Common Pleas
The Court of Common Pleas, also known as the Common Bench or Common Place, was the second highest common law court in the English legal system until 1880, when it was dissolved. As such, the Chief Justice of the Common Pleas was one of the highest judicial officials in England, behind only the Lord...
held that the relationship between client and barrister
Barrister
A barrister is a member of one of the two classes of lawyer found in many common law jurisdictions with split legal professions. Barristers specialise in courtroom advocacy, drafting legal pleadings and giving expert legal opinions...
was not a contract
Contract
A contract is an agreement entered into by two parties or more with the intention of creating a legal obligation, which may have elements in writing. Contracts can be made orally. The remedy for breach of contract can be "damages" or compensation of money. In equity, the remedy can be specific...
. Patience now sued Thesiger over his original professional misconduct. Further, she alleged that Sir Cresswell Cresswell, the judge
Judge
A judge is a person who presides over court proceedings, either alone or as part of a panel of judges. The powers, functions, method of appointment, discipline, and training of judges vary widely across different jurisdictions. The judge is supposed to conduct the trial impartially and in an open...
in the original trial, had induced Thesiger's agreement to a settlement by suggesting that he had formed an unfavourable opinion of Patience's case. Her claim was unsuccessful.