Elsy Borders changed the course of legal and political history in the field of owner-occupied housing mortgages. The campaigns around rent control and investment in council housing that the Communist Party was noted for in the 1930s were extended by the Borders to home-owners who went on mortgage strike in protest at shoddy workmanship in the building of new homes.
A Communist Party member, Elsy played a prominent role in all this by taking her building society to court over its failure to ensure good building standards. Many homeowners were deeply concerned over the complicity of the building societies in accepting the low standards of construction from speculative builders and the campaign was successful in contributing to legislative change.
In the 1930s a ring of new built estates sprang up on the edges of London. Many were built by local councils, but there were a number of private developments too.
“Here was revealed one of the greatest rackets operating between the wars. The Conservative Governments were not prepared to grant assistance to the local authorities in order that they could build houses for the working class, to be let at reasonable rents. In fact, they deliberately cut down grants for slum clearance, slashed the housing programmes, and consciously encouraged building societies. There was therefore no competition, or very little, with the jerry-builders. What was their racket? Had they built houses to let, within a few years those houses, as the slums which many of them became, would never have been .. letable ” at the rents which the owners expected to receive in order to make them a profitable proposition. So developed the greatest racket of the time: … Own your own Homes “: … The Briton is an individualist.” Wonderful pictures were drawn and millions spent on advertising to show how glorious it was to be the complete master in your own home. Hundreds of thousands, even millions, lapped this up, bought their homes on … the never-never “, £50 down, 17s. 6d. a week. After a few years not only normal decorations but serious repairs were urgently needed for these houses were falling to pieces. The working-class folk who proudly inhabited these homes in the suburbs of London and other cities, and who could only make ends meet by account- ing for every penny, found themselves faced with the alternative of dilapidation, or of paying heavy repair costs. Meanwhile the payments to the building society had to continue or else. . . . I remember the time when working-class rent-payers of Stepney would envy the dwellers in these jerry-built suburban houses, and, of course, many of these people valiantly tried to keep up appearances. “
The 1930’s building boom – along with the rise of new consumer industries – was a vital initial factor in shifting Britain’s sluggish economy upwards (until pre-war rearmament came along). But not all of the new buildings were well-built. Many of the new homes leaked, creaked, and crumbled. Building societies tended to be highly authoritarian towards borrowers and could even be considered beset with corruption and snobbery. A situation tantamount to renting emerged as societies employed weekly collectors of the mortgage to try to prevent mass mortgage default as more and more fairly ordinary working class people with secure jobs turned to mortgage-holding.
“As the tenure of owner-occupation opened up in the 1930s, building societies tried to create a situation very close to renting so that they could control their mortgagors. On the Coney Hall estate, as on many, the builders employed weekly collectors of the mortgage to try to prevent mass mortgage default…”
In March 1934, Elsy and husband Jim, a London cabby, bought a house on Coney Hall estate, twelve miles from Charing Cross in West Wickham, today firmly in the London Borough of Bromley but then thought of as being beyond and into the green belt of Kent. They moved in with their three-year-old daughter, Pamela, and, having a keen sense of humour, named their home “Insanity”. So, their address became, “Borders of Insanity”, Coney Hall Estate, West Wickham, Kent!! More formally and much later it was to become 81, Kingsway, Coney Hall, West Wickham, Kent.
Coney Hall estate was less than ten years old. One of many owner-occupied estates arising during the inter-War housing boom, it was built in the 1930s on hilly farmland south of West Wickham bought by the developers, Morrell Brothers, from Coney Hall Farm.
Following the death of lord of the manor Sir Henry Lennard in 1928, much of his Wickham Court estate was sold to building firm Morrell’s, which was also building on the western side of Petts Wood. Construction work on the estate’s 1,000 homes began in 1933 and the shops of Kingsway Parade were built on the south side of Croydon Road.
In the previous decade, opposition to road developments adjacent to West Wickham Common and Hayes Common had left the area accessible only by steep and narrow lanes. In Coney Hall’s early days. London Transport refused to provide a bus service, and a free private coach service connected the estate to the nearest railway station, Hayes. Many of the houses were in a standard style, with polygonal bay windows and half-timbered gables, and were priced more affordably than elsewhere in West Wickham, although this distinction has since diminished.
The Borders purchased the house, which was built by Messrs E. Morrell, through the Bradford Third Equitable Building Society. As a down payment, they paid £37 in cash – a considerable sum – and signed a mortgage for the remaining £693. The building society, in accordance with their usual practice, paid only £650 to the builders, keeping the rest as part of a pool to pay losses from defaulted mortgages.
Hardly were the Borders installed when they noticed cracks in the ceiling, squeaks in the floors. Soon plaster began to fall, dampness oozed through the walls, the roof sagged and leaked. Later, it was stated in court by Jim Borders that “…the house was in a bad condition. The whole front … was damp, and the wallpaper fell off the walls by its own weight. The foundations were narrow and did not look strong enough to support the house. There were cracks in the outer walls and windows in front did not fit. Two of the windows would not shut and had been in that state for at least two years. The ceilings were cracked and the roof leaked. The electric wiring was never safe, and the front of the house was cracked in several places and the eaves were open. The glass on the front door has collapsed, the bath had dropped from its original place, and the fireplace had come away from the walls. The chimneys were defective and the woodwork was infected by a small insect. The party wall did not go up to the full height, and he had shaken hands over it with his next door neighbour. That was all he could think of for the moment, he added.”
While the Borders grumblingly met their monthly four guineas payments, Elsy busied herself helping form first a local and then a national Federation of Tenants’ and Residents’ Association. Some 1,200 residents organised themselves into the Coney Hall District Residents Association and, as a result of the struggle, Elsy Borders later became a leading figure in the FTRA, along with Michael Shapiro as Secretary.
When, in a blaze of local publicity during 1937, the Borders began withholding mortgage payments until some remedy was provided about the building flaws, this prompted as many as five hundred of her neighbours on the estate to also intentionally defaulting on their payments to building societies. After three months, the Bradford Society brought a claim against Jim and Elsy, seeking repossession of the house on the simple grounds that the Borders were three months in arrears with their mortgage repayments.
In turn, the Borders hit back with a massive compensation claim of £500 to cover the accumulated costs of repairs already effected by the couple over the previous three years, a sum approaching the cost of the whole house. Their claim charged misrepresentation of the value of the house, questioned the legality of holding back part of the cost in a pool, while at the same time charging interest on the full amount, and charged the society that it had lent money on an insufficient security and had “wilfully and fraudulently” misled the couple into believing that the house was built of good materials and in efficient manner.
Unable to afford a lawyer, Elsy Borders spent several months reading law in the London School of Economics, and handled the case herself, winning national fame in the mainstream press as “the housewife Portia – the tenants’ KC”. [KC=King’s Counsel, today a QC, Queen’s Counsel.] The case began on 13 January 1938 and focused the attention of the whole nation upon the plight in which hundreds of thousands of house purchasers had found themselves.
Dubbing Elsy `the modern Portia’ was a nod towards Shakespeare’s play, ‘The Merchant of Venice’ and it was the strength of character that Portia displays on stage that made it a role always highly attractive to many notable actresses. Elsy’s persona in court recalled such memorable stage performances. Portia’s role stresses that, irrespective of its formal legal merits or moral authority, an argument can be won through the employment of eloquence, loopholes and technicalities and the term had often been employed to denote a strong female advocate of sometime uncertain legal arguments. The term was made popular following the 1908 foundation of the New England School of Law, popularly known as the Portia Law School, and a women-only law school. The school’s nick-name was still in general currency until as late as 1969.
For 18 days at the beginning of 1938, the legal battle was fought out in the Chancery Court, which was permanently packed with crowds who came to see the “Portia, the tenants’ KC” in action. Elsy spoke for a stunning eight hours but, despite a great deal of fuss that made it seem as if they had achieved total victory, in fact, the Borders actually won only a part of their case, in so far as the Court’s judgment dismissing both actions gave them clear title to their house, without having to pay any more instalments, but rejected other claims.
The Bradford Building Society’s case failed, Mr Justice Bennett ruled, because it was unable to prove that the mortgage deed it produced as evidence was the one that the Borders had actually signed. But the Borders’ counter-claim failed too, because Elsy couldn’t prove that the building society was responsible for misrepresentation. She appealed, saying the case pitted the purchaser against the jerry-builder, the rogue who throws up a good-looking but poor-quality house and tries to sell it through a building society. Backed by a fighting fund – sympathisers subscribed the significant sum of 10 shillings a head – the Borders’ crusade gathered momentum with a packed public meeting on the Coney Hall estate. Jim Borders warned that their legal struggle might last as long as five years, involving as many as 40 building societies.
Indeed, following the first case, the Federation of Tenants’ and Residents’ Associations prepared writs against 24 “jerry” building societies, including Halifax and Abbey Road, the two biggest. “Portia” Borders now became the heroine for many Britons and aided the movement to found `Tenants’ or Residents’ Defence Leagues’, which were typically led by Communists. As many as 70,000 families were on rent or mortgage strike at one point. Mortgage strikes occurred in all parts of the country, including many suburbs of London, such as Hayes, Felton, Earlswood, Queensbury, Whitton, and Twickenham, and in scores of other places.
In 1939, on the centenary of the great working class Chartist Convention that demanded reforms such as universal suffrage and annual Parliaments, representatives of the 200,000 members of the booming Federation of Tenants’ and Residents’ Associations met for its first national convention.
Birmingham, the recent scene of a victorious strike by 46,000 families living in a municipal housing, was the convention city. The purpose of the meeting was to weld the scattered defence leagues into a national pressure group with a program of slum clearance, Government rent control, increased legal responsibilities for landlords. Although the Labour Party lawyers’ group, the Haldane Society, supplied the movement with free legal advice, no political party other than the Communist Party supported the Federation. Yet the NFTRA had 45 branches and membership of 45,000.
This was all a big deal; Britain had some one thousand building societies, with assets totalling £750,000,000. But the judgement had left all the major issues unresolved, whereupon in February 1939 some 3,000 owner occupiers in outer London went on mortgage strike, causing many houses to be repaired. A measure was rushed through Parliament to legalise the established practice of the building societies in respect of this collateral. Also, whilst it is true that the Borders’ ultimately lost their specific case, the endeavour did truly expose abuses of the building society system and was one of the factors leading to its regulation by an amendment in 1939 to the 1874 Building Societies Act. It was former Communist and left MP, Ellen Wilkinson, who introduced a bill in Parliament to reshape the Act. The 1939 Building Societies Act was passed with the co-operation of the Building Societies’ Association and the Government and it restricted the mortgage security that building societies could accept.
The “Tenants’ KC” was to return to court in March 1939 with a libel suit taken out by her husband Jim against the builders of the Coney Hall estate, Morrell Brothers, for describing him to his building society as “definitely a bad egg”.
Elsy’s opponent in this was Norman Birkett KC, no mean opponent in the least. At this point in time, pince-nezzed Birkett was mostly known as the man who got Wallis Warfield Simpson her divorce so that she could marry Edward VIII but he was also considered as Britain’s top criminal lawyer. Described as “one of the most prominent barristers of the first half of the 20th century”, and “the Lord Chancellor that never was”, he was later to become Baron Birkett, a Court of Appeal judge and a member of the House of Lords. Birkett was noted for his skill as a speaker, which helped him defend clients with almost watertight cases against them. Birkett’s legal opinion helped shape the final judgment at Nuremberg Trial of the Nazi leaders in 1945.
Yet Birkett found himself more than matched for guile by Elsy, who won the case hands down, with the court awarding Jim Borders £150! Said Elsy, as Norman Birkett KC withdrew from an attempt to cut and thrust which was well parried by her: “I wiped the floor with him! He was bloody wild.” Elsy was described by one newspaper as “a brilliant and resourceful leader. She has insight, a cool head and, above all, a fervour which inspires her colleagues.” Birkett’s opening observation on cross-examining Elsy was that she was “getting quite accustomed to litigation”. This drew a lightning response from her, widely and approvingly quoted in the newspapers: “This is the first time that I have had the pleasure of meeting you, Mr Birkett”, as laughter drowned the court.
Birkett sought to suggest to Jim Borders that he had only been put up to take the case to court by his domineering wife. “I put it to you,” he declared, “that Mr and Mrs Borders are one and the same person and that person is Mrs Borders.” In response, as Jim’s counsel, Elsy retorted: “There may not be any difference between Mr and Mrs Birkett but there is a difference between Mr and Mrs Borders.” Birkett’s wife was widely portrayed by high society gossip columnists as a domineering woman, so even the judge burst out laughing and the court dissolved into momentary anarchy.
The Borders’ crusade against the power of the building societies was only finally extinguished as the phony war was began to turn to blitz. The case was dragged to the House of Lords in 1940 by Bradford Third Equitable. There, the following year when judgement was handed down, predictably, the honour of building societies was redeemed and Bradford totally exonerated. The mortgage strikes promptly fizzled out. Nonetheless, this had been a moment of serious challenge to the conception of the property-owning democracy that was at the heart of Tory and Liberal thinking on housing – mass mortgage ownership would only be kick-started again in the late 1950s and early 1960s.
Even though the legal outcome as regards collateral security, responsibility for the condition of mortgaged property, and for builders’ descriptions of new houses favoured building societies, remedies had to be found. In the short term, the campaign – and the associated struggles of rental tenants – shook the very foundations of the political and economic basis of housing policy in Britain. As Claud Cockburn later wrote: “The whole freewheeling apparatus of the boom, the ramshackle financial machine which powered the productivity and profit of it, appeared to be in danger.”
Sadly, the Borders lost possession of their home through these crafty legal moves by the building society. In late 1940, as the blitz progressed, Elsy evacuated with daughter Pamela to Exeter, where she died in 1971. Her marriage to Jim ultimately failed, and neither ever owned a house again. Jim trained as a barrister, but died almost penniless in 1966.
He was uncertain about the long-term value of the struggle he and Elsy had gone through. When the people of Coney Hall presented him with a clock, he chose as an inscription lines from Southey which were intended in the circumstances to be ironic, although few appreciated this:
And everybody praised the Duke,
Who this great fight did win.
‘But what good came of it at last?’
Quoth little Peterkin.
‘Why that I cannot tell,’ said he,
‘But ’twas a famous victory.’
Elsy’s lasting legacy in the world of law is to be the by-word for what constitutes a fraud. In the case of Bradford Third Equitable Benefit Building Society v. Borders , Viscount Maugham’s explanations of his view of what establishes the tort, or civil wrong, of deceit or fraud were not only accepted by the court, they have been used as precedent in countless cases from that time to this very day to establish liability or not. Arguably, had Elsy not been previously so eloquent, the Viscount may not have been wheeled out by Bradford’s solicitors to issue his fine definition of fraud. Of course, the ultimate in judge-made law is the House of Lords and it was its judgement in 1941 that provides this `legacy’ of Elsy’s.
It is today taught in legal training that it was held in Bradford v Borders (1941) that the maker of a false statement must have intended for the claimant to have relied upon the statement if a tort is to be established. Moreover, the main difference between suing in deceit and in negligence was addressed by reference to the caps on remoteness of damages. In deceit, to mark the law’s disapproval of fraud, the defendant (in Elsy’s case the building society) is liable for all losses flowing directly from the tort, whether they were foreseeable or not.
But, Maugham’s definition also establishes that a common law action of deceit requires a representation of fact (her expectation that the home she was paying a mortgage on was sound) made by words, or conduct – but not silence or omission – made with a knowledge that it is wilfully false and with the intention that it should be acted upon so as to result in damage sustained by acting on a false statement. In other words, that it was necessary all along in English law to prove that Bradford Third knew that they were funding an unsound home. Effectively, the Borders’ claim that Bradford had “wilfully and fraudulently misled” them, was ruled by the House of Lords as something that could virtually never be established in the business of mortgage lending.
Elsy did not ultimately fail in her campaign, as some have suggested, but the British establishment did simply change the rules to favour themselves. Restrictions were put on the ability of the developers to sell badly built homes – though this is a struggle new homeowners are still going through today. Mortgage strike anyone?
This post was partially nicked from Graham Stevenson’s excellent site
An entry in the
2018 London Rebel History Calendar