Fraser Whitehead talks to Amanda Lathia of TWM Solicitors

INTERVIEW

Fraser Whitehead talks to Amanda Lathia of TWM Solicitors

Fraser Whitehead

After a long association with this local law society Fraser Whitehead has moved on. His career began in 1973 in Chancery Lane as an articled clerk with a firm now part of DLA Piper. Forty-six years later, having worked for only one other firm and moving no further than Gray’s Inn Road, a full-time career came to end just doors from where it began.

AL Has much changed in that time?

FW Well yes and the pace of change is increasing. Let us start with training. In 1973 I would spend one day a week at Companies House doing searches and another doing the outdoor clerking at the courts and the rest sitting with my “Principal”. We were not employees but chartered “to be bound to and obey” and sometimes unpaid or even having to pay for the privilege. Most of the partners wore bowler hats. Mine lunched at Simpsons. As law graduates, we had passed the legal theory exams taken over five gruelling days, but it was learning by rote. “Pay cash is not a cheque,” lingers on, with many others. There was no practical training so there was a lot of trial and error and therefore little client contact. One of my first responsibilities was to draft a deed adding a new partner to a large accountancy client. I thought it would be an opportunity to also rearrange the partners names alphabetically. It was not, apparently, but I somehow survived. So, training is very much improved though it is easy to see why some view the new PQE regime as a step back.

The legal support and technology changes have been substantial and perhaps more than you can imagine. In 1973 we had a machine room with a small photo copier and a very large metal box from which a specialist typist that could produce an original deed and a duplicate. When I joined Russell Jones & Walker in 1975 it was known as a relatively progressive London firm. As in other firms, many senior fee earners were legal executives, very able but often with no formal professional qualifications. I was one of about thirty lawyers, as we were all known to imply a less hierarchical structure. But all lawyers were male and all white. Women in the firm worked in secretarial and administrative support functions.

On the first day, being a solicitor, I was given a largish office with a desk, a large chair, a pen and ink holder, a large blotting paper holder and a pile of files. There was a second smaller chair where my secretary would later sit to take shorthand and produce typed letters with carbon copies for the file. I read the files, read large books from the library shelves, dictated letters and drafted documents. I recall being impressed with the eloquence of my first outputs. Asking smugly if I had really said what I now read. “Not exactly” was the smiling reply.

On become a partner in 1978 aged twenty-seven, I moved to an even bigger room. After forty-five years and now very senior, I was sharing a desk, in a large open space, where I read files and books on a screen and mostly typed slow and badly using auto correct and spell check. For most of the last few years I reported to a woman from the other side of the world. I learned a lot.

So, the technology firm culture and structure had changed but the core job had not. Read, think, get it right, advise, do.

When I stated in the law partnerships were limited to twenty and even the largest firms were small to medium by today’s standards, and the profession was just over 40,000. Both have increased enormously, and we are no longer just profession owned businesses.

In the last five years it has been noticeable that the application of technology has leapt forward and now is not only assisting but reshaping the qualified lawyer function. I cannot see the profession continuing to increase in size and it will more likely shrink. Probably we will have to reclassify both what we mean by the word lawyer and, more importantly, what distinguishes the title solicitor, if we are to retain value in that brand.

AL You worked for Slater & Gordon in specialised litigation. Could you tell me more about your time with that firm?

FW We need to start with Russell Jones and Walker which was known as the blue-chip claimant dispute resolution firm, and where I enjoyed a long and successful career for nearly forty years.

In 1975 we had just joined the EU and the Sex Discrimination Act had become law in November. In 1976 I brought a Tribunal case for a Ms Garland against her employer BREL. It was the first sex discrimination case to be referred by the House of Lords to the European Court of Justice and we won. The case also established principle of direct effect of EU law. So, a relatively glittering start. As a firm mostly representing workers and unions at time when labour relations were dominating the news we were working at the heart of the political and legal agenda. In 1980 I was back in the House of Lords in the leading case on secondary strike action and winning, having lost before Lord Denning in the Court of Appeal.

We steadily grew the business from four partners in one office to a fifty-partner firm with ten offices thought the UK, with an excellent client base and a classified as a top fifty firm. I headed a number of departments over that time, and we had a well-run and cohesive partnership. There was a strong work ethic but also a lot of fun. We had the balance just right. You see much less of that in firms today.

In 2012, then one of the largest firms in our fields, we were taken over by Slater & Gordon. In sense, and as it turned out, a victim of own success. S&G was an international and publicly listed law firm based in Australia with a similar client base and a particular strength in class actions. I switched from my then role of Head of Group litigation in RJW to a similar role in S&G and joined the UK Board. We remained part of the international listed law firm until 2017 when S&G internationally experienced serious debt problems and was taken over by an American Hedge Fund, who broke us off from the Australian PLC. I was the last member of the UK LLP other than the hedge fund, who now own both but as separate businesses. In my final year I was involved in cases in the Supreme Court and the European Court of Human Rights. I concluded my last case, a group action, at a late-night ADR on my 68th birthday. We finished just in time for a beer. There are now almost no RJW people left at S&G. The firm is much changed and today seems to be barely a law firm. It is sad to have no alma mater to be proud of.

AL What attracted you to litigation?

FW In training I had experienced, commercial, commercial property and commercial litigation work and my fourth and final was to be private client. I lasted only taking evidence for one restraining injunction and asking to be moved. I went to insurance Litigation acting for Lloyds syndicates and a light came on. But it also showed me that I wanted to be more engaged with people than institutions and that I was probably acting on the wrong side.

But still torn between the alternatives of commercial law and litigation I almost took a position with a firm working in the arts and entertainment industry My life and career would have been very different had I gone that way, but the adrenaline pull, the excitement and challenges experienced in litigation, and the desire to win, ruled the day. I have no regrets about the decision.

I took the role as a commercial litigator at RJW working initially, as it turned out, on litigation for Lloyds and in the entertainment industry. However, within a few months I was also working on cases in the firm’s main practice. It was not long before I realised that securing and enforcing the rights of individuals was my cause.

AL Do you have a memorable case or cases that changed or affected you in some way?

FW I was blessed with a very dynamic and exciting caseload during most of my career. I had many cases in the House of Lords/ Supreme Court and could not count how many times I acted in the Court of Appeal. The Thatcher government was professional blessing and all the better because most cases succeeded.

It would be difficult to pick out one from many headlines. Certainly, it would include ones I lost and could not appeal, usually for financial reasons. In the early days of sex discrimination legislation, the judiciary were reluctant converts and we lost cases that today would not be defended. One example that still irks, was against the Daily Mail on behalf of the telesales adds staff, who were almost all women. They worked around core hours which enabled the mostly working mothers to arrange childcare provisions. The Mail unilaterally changed the hours bringing them forward and making satisfactory child-care arrangements impossible. We lost in the Court of appeal to the astonishment of all involved and I have never forgotten that day. Later I managed to stop the sequestration of the print union funds during the Wapping dispute, using an argument based on the law against perpetuities, but it was a nasty fight. I still do not buy Murdoch papers.

One of my last cases involving the Supreme Court, concerned what we alleged was the racial and religious racial discrimination of civil servants by HMG which we lost. It centred on the use of closed (security sensitive) material and the extent that such material hampered the proper and fair judicial resolution of legal issues. I still believe there must be a better way, if we are to be confident that justice is done in such cases. I would like to see that achieved. It will return as an issue.

AL Tell me about the Blackwell Committee and what your role within that entailed?

FW The Blackwell Committee was set up by the then Lord Chancellor, Lord Irvine of Lairg, to examine the emerging issue of unqualified claims managers involvement in the handling of employment and of personal injury cases and the potential adverse impact on consumers. Our work was completed in about 2000 and on the then evidence we did not recommend any reform. But ten years later the non-qualified market had grown, and I was asked to assist in establishing a regulatory framework which led to what was the very effective Claims Management Regulator but is now subsumed into the FCA, which I think may prove to be a bad move. I also had some success in my appointment to the Legal Costs Advisory Council, too much perhaps, as it was abolished by David Cameron in 2010 and only recently have civil inter party rate increases been officially restored.

AL Alongside your career, it is quite clear that you have an interest in the underdog and in supporting charities.

FW You are right if you mean those with the lesser power and resources which of course means most citizens. I have acted exclusively for claimants and individuals for most of my career apart from a brief foray representing small business against the big banks over interest rate hedge mis selling and which I thoroughly enjoyed. That is not to imply that I see all business as bad but that I prefer, in winning, to be putting right what is wrong.

As to Charities I am a doer and not a giver, so I give time not money and I have always been involved in one or more as lawyer, manager, or helper and that and will continue to be. I do see it as doing the best with a bad option. It is a state responsibility.

AL What is your view of Legal Aid today? There has been a lot of commentary in the legal press and national press about the cuts that have been made. What do you think can or should be done to improve access to justice for those who most need it, especially the poorest?

FW Legal Aid was relatively new when I qualified. It began funding cases in a substantial way in the early seventies and solicitors though local law societies, including Holborn and Westminster (they were separate back then), were heavily involved and responsible for approving Legal Aid applications. It was a vastly different system to the one now but then the usage has changed as the volume of cases going through the courts now is so much greater than it was. I have always believed justice like health should being a level playing field available on equal footing to all and through a form of state support for those who cannot afford it. However, the relative high cost of legal services now, compared with then, is a factor which we as a profession have a part in. That leads me to the view that Legal Aid as we knew it is not now a deliverable answer. I have always though that some form of state defender would be better in the criminal justice system. Yes, delivering real independence and sufficient funding will be a struggle particularly when the public are encouraged to see it as there for someone else not them. But the pandemic may have revived our understanding of the need to fund the key planks of society through taxation. So, it might yet be deliverable.

In civil cases restoring the cost follow the event system albeit with a recognition of proportionality is necessary. Lord Justice Jackson is quite wrong in recently claiming success. I am reminded of the words of Tacitus “they make a desert, and they call it peace.” For ordinary people, the ability to get justice at proportionate cost is now very limited and depends on decent lawyers doing the decent thing and a climate that makes that possible. Part of the problem is the increase in complexity in the legal system. The judges are responsible for setting the civil procedure rules and they should aim to simplify not just reengineer complexity as they have often done. We cannot continue with rules anticipating full trial nor replace them with Justice lite. And we must look at ourselves and the pressure on fee generation. If the profession cannot also deliver, we will be cut out of the dispute resolution system and may be even by AI. There is an expression about geese and eggs well worth remembering.

AL During your career you also had a long tenure at the national Law Society, where you were a council member, chaired a number of committees and projects and you were also active in our local law society, serving on our committee and being president. Why, and can you describe some of the memorable projects you helped to deliver, including the 12-year rule?

FW Why, is because it is within the Council and in particular in the committees of Council and the Society, where things can get done that make a difference. So yes, I was a very active member and committee member.

I chaired the civil litigation committee, and I chaired the civil justice committee, the legal affairs and policy board and was a member of the management board. Each added something to the legal landscape. I also chaired several sub-committees including consumer rights working parties and cost-working parties. Finally, I chaired the council membership committee which is where I was able to reform the basis of council, to make it more relevant to today’s profession. I like to think we have made huge strides in the reforms that went through including the 12-year rule which delivers more frequent fresh thinking. Some did not like me promoting that and in fact, council narrowly voted against it. I accepted that decision, but others took it forward, rightly in my view, and brought it to being. As to changing the make-up of council, we have this year, for the first time, elected women in the proportion that they are in the profession (51%). When I joined the council in 1979 there were three women out of sixty-five members, so I am very pleased about helping put that right. We also had a real increase in the number of ethnic minority members who are now almost 30%. We have new seats for family, for corporate, for In House and for junior lawyers. I hope the reforms will be a success, but time will tell. It is paramount that we have a council that is relevant to the profession and that the profession can identify with.

AL What drives your passion for reform and governance?

FW Well, I am one of those so called awful “leftie lawyers” and it is sort of in my DNA. I would put it down to wanting things to work better and to work for those they are meant to work for. I am driven by a keen sense of justice and fairness. Delivering those has been the guiding principles of my career. Recognising that sometimes you have to lose in order to win, has been harder.

AL What do you think is the future of law societies in general and specifically WHLS?

FW When I joined Holborn Law Society, in 1984, it was seen as one of the most influential local law societies in England and Wales. Only the city was held in higher regard with Manchester, Liverpool, and Birmingham on a par. Today all the urban centres outside London have a much bigger voice than Holborn and Westminster and the City is way ahead. That is a disappointment but we as a profession and in London, have increasingly undervalued the importance of our relationship with Chancery Lane. The relationship between a local law society and the Council, our governing body is the most important relationship, and we need to rebuild that connection to give us and our members a better sense of relevance. Another change is that those active in the local law societies were often at the pinnacle of their careers and often big players in their firms because feeding into Council as a regulator, was a route to benefitting firms from a commercial perspective. But those days have gone and will not return, and the local law society structure has yet to sufficiently reinvent itself except in the main provincial urban centres, where it has. It is more challenging in London because of the proximity to Chancery Lanes. Offering really good networking opportunities are probably the key.

I have always believed – and this was part of my reform program that was not successful – that local law societies cannot succeed if they continue to be and think small. Part of the reform proposals was regionalisation of Council constituencies. So, for example we would have an in East Anglia a constituency seat comprising the current seats of Norfolk, Suffolk, Cambridge, Bedford, and Essex to make it more effective and for the members collectively to make a more powerful contribution. This is why I also have been campaigning for a Central London Law Society to replace the three current three local law societies outside the city, to bring more members together. WHLS may not be around in a few years’ time if we do not focus on being bigger.

AL You were a director and now trustee of the Mary Ward Legal Centre; were an advisor and council member of the Islington Free Legal Advice Centre. You also founded a charity supporting single parent families and chaired the Children’s Accident Prevention Trust. How in your view have free legal centres changed over the years and how significant is their role in society?

FW There were many more law centres in 1975 when I qualified than there are now and there were plenty of willing volunteers. I am still involved in the Islington one. Law centres remain an important source, not always of delivering full legal services, but in assisting with their delivery. Being voluntary they cannot usually manage claims or cases because they do not have the resources. I do think they need to have good working relationships with appropriate local firms who they can feed cases into and where they know matters will be dealt with properly, taking into account the ability of the individuals who are referred to make a financial contribution which is probably negligible.

AL It can be difficult for a client to have their case managed by one individual because volunteers change from day to day. Has this always been a problem at law centres?

FW In the law centres where I have volunteered, that has not been an issue. We kept the case papers in the centres so if you were away, someone else could pick up the file and at least advise the client what was happening. That was important. Whilst one lawyer cannot do everything on a case, you cannot have a case with more than one decision leading on delivering the client interest.

But it is an increasing problem in mainstream practice too and in the over devalued commoditised sector where tech rules. I am involved as a client in two matters currently. In one I can just about recognise the client solicitor relationship and my interest being pursued, but in the other, not at all and it has been a shock to see how far we have descended.

AL Finally, in what direction do you think – or hope – our profession is going?

FW The mainstream will always follow the money and there is no harm in that but ours is not just a job. We are delivering part of the wider public interest and our role is to make sure that the cogs of society turn properly whether in the dispute resolution, property transactions, securing justice or whatever. We need to be good at what we do, and we need secure improvement to the law where we can. It is not about us. So, I do think that we need to better demonstrate our commitment to promoting fairness and proper access to justice and to legal rights wherever we work, because the justice system and the existence of rights are the cornerstone of society. The fact that we are now so often restating this is an indication that it is slipping away. It needs to be re embedded.

AL What are you doing now and what is in store for you next?

FW I am a freelancer and a consultant. I will keep my active interest in the law going for a few more years but after working in large businesses what you can achieve on your own is limited. I passed through Holborn recently and realised that for the first time in almost fifty years I had no daily engagement with the area. Getting used to that may be the hardest challenge, but I will continue to support you where I can. ■