|Borders Elsy and Jim|
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Elsy and Jim Borders
Elsy Borders, in particular, features strongly in the history of the role of the Communist Party in the housing campaigns of the 1930s. Born around 1900, Elsy
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.
Unlike in the USA, which relied on major state infrastructure projects to get out of the Depression, the 1930’s building boom - along with the rise of new consumer industries - were the initial factors in shifting Britain’s sluggish economy upwards (until 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 mortage-holding.
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,
The Borders purchased the house, which was built by Messrs E. Morrell, through the
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 (se separate entry) 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
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
Dubbing Elsy `the modern Portia’ was a nod towards Shakespeare’s play, `Merchant of
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.
Indeed, following the first case, the Federation of Tenants' and Residents' Associations prepared writs against 24 "jerry" building societies, including Halifax and
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;
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 mary 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
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
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 - shock gthe very foundations of the political and economic basis of housing policy in
Sadly, the Borders lost possession of their home through thesecrafty legal moves by the building society. In late 1940, as the blitz progressed, Elsy evacuated with daughter Pamela to
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
It is today taught in legal training that it was held in
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
Elsy did not ultimately fail in her campaign, as some have suggested, but the British establishment did simply changed the rules to favour themselves. Even so, the business of selling homes that enabled the appearance of damp on walls and ceilings, cracked masonry, warped window- and door-frames, leaking roofs, beetles in the woodwork, and the shrinking floorboards, which issued electric shocks from defective wiring could never again happen.
Sources: Time Magazine July 31st 1939; `Where the Other Half Lives: lower income housing in a neo-liberal world’ Edited by Sarah Glynn, Pluto Press; Thanks to Michael Walker for references from the Communist Party pamphlet `Battle for Homes' by Ted Bramley; Daily Telegraph, 25th July 2001; Bradford Third Equitable Benefit Building Society v Borders , English Law Reports 205, 211A; The Times March 20th 1939;