Geoffrey Bindman recalls communist intrigue and underhand government manoeuvres
In 1956 I was articled to a trade union solicitor. The firm, Rowley Ashworth, had acted for the Electrical Trades Union (ETU) since its foundation in about 1880. As at other trade union firms the bulk of the work was accident claims and the method of dealing with them was standard. Every day a heap of claim forms from union members would arrive from the union head office, where the hopeless cases would already have been weeded out. A letter formulating each claim would eventually find its way to one of a small number of insurance companies which indemnified the employers. Our solicitors would have regular meetings with insurance officials at which, after a good deal of haggling, most cases would be settled on the spot, with a figure on top of the damages for our firm's legal costs.
Cases where agreement could not be reached would be put aside for further investigation, and for proceedings to be issued if there seemed a good chance of success. If the case was later dropped or failed in court our firm was expected to bear the cost rather than send the union a bill. The volume and profitability of the work seemed enough to support the partners in reasonable comfort. Union connections were highly prized and assiduously cultivated. The same is no doubt true today.
Conspiracy
Two years after I had completed my articles and left Rowleys, ETU officials found themselves in the High Court in a remarkable trial. The communist president and general secretary had been declared re-elected to their offices but the result was challenged by the two unsuccessful anti-communist candidates, who claimed that there had been a conspiracy to rig the ballot. Rowleys were not involved in the case; Communist Party solicitors acted for the defendants.
The challengers were represented by Ben Hooberman, then an active member of the Labour Party and treasurer of the Society of Labour Lawyers. He briefed Gerald Gardiner QC, the future lord chancellor, and another Labour lawyer, Jonathan Sofer, as junior.
Headline news
The trial was headline news. It lasted 42 days and exposed what Gerald Gardiner described as “the biggest fraud in the history of trade unionism”. Ballot papers had been filled out in fictitious or duplicated names and potential voters not regarded as likely to vote for the communists were excluded. The election was declared invalid and the communists deposed. The new leadership rapidly rewarded its solicitor by transferring the union's legal business to Ben's small firm, Lawford & Co.
I had come to know Ben through the Labour Lawyers. He found it hard to cope with the deluge of accident claims which suddenly descended on his small office. He had to find new staff in a hurry. I had started a legal aid firm in Kentish Town but I had spare capacity. He asked me to help out. Within a few months I had joined him in partnership (and stayed for eight years). I became a trade union lawyer.
I imagine that trade union lawyers today have more sophisticated fee arrangements with the unions and the insurers than the back of an envelope practices of the sixties, but the central feature cannot have changed: the losing party—in most cases the insurers—pays the claimant's costs. Hence the unions are able to provide their members with a valuable service at very little expense.
A clever wheeze?
In 1999 the government allowed conditional fee agreements: introducing the “no win, no fee” culture as a clever wheeze to deflect dissatisfaction with the inadequate funding of legal aid while at the same time lopping even more off the legal aid budget. It was easy but unprincipled for the government to legalise what had been prohibited for centuries: lawyers taking a financial interest in their clients' litigation.
The inspiration for “no win no fee” came in part from trade union legal services, for which the government has expressed admiration, but it is ironic to link the longstanding struggle of the unions to secure redress for those injured by the failures of their employers with a dubious method of funding legal services for the public at large.
Naturally the conditional fee agreement is criticised by the insurers and, because of its popularity in libel cases, the media corporations, but the ethical objections are real:
● The claimant's lawyer has a financial interest in only taking on very strong and straightforward cases.
● Claimants find it hard to pursue difficult cases, even if the risk of losing is small.
● The success fee—up to 100% additional costs for the claimant's lawyer—was introduced to encourage lawyers to take the risk of losing and to induce defendants to settle quickly but it may have done little more than provide rich pickings some entrepreneurs.
To me the real sadness is that “no win no fee” has hastened the collapse of legal aid by encouraging lawyers to give up unprofitable but socially vital areas of work still demanding legal aid in favour of lucrative damages claims. But the proud record of the unions in protecting their members against the consequences of dangerous working conditions remains intact.
