Litigation funding is nothing new. At one time it was known as maintenance and champerty, and was a felony designed to stop robber barons hijacking litigation for their own ends. But 130 years ago the public rallied to help fight the barons in the form of the railway – and in 1884 finally succeeded.

Shortly after Christmas 1878, Henry Smitherman was killed on a level crossing in Maidstone, leaving, as Reynolds’s Newspaper described it, his ‘poor’ widow and ‘four fatherless children’. In 1881, she won an action against the South Eastern Railway Company. The company appears to have offered, at first, ‘£15 or so’. The jury awarded £900. However, she did not get her money because the company took the case up to the Lords where their lordships ordered a new trial, provided the railway paid her £1 a week.

Now letters were written to The Times. The ‘working men of Maidstone’ raised £100 – and one Tom Featherstone organised a fund asking for 12,000 penny postage stamps, so she could continue the fight. This brought in 26,000 stamps. The company now offered her £200.

The second hearing was before a special jury in London, because it was felt that the ‘men of Kent’ would not be sympathetic to the railway. Smitherman was again successful. Still she did not get her money. The sticking point was that the jury said both sides were ‘greatly at fault but that the company should bear the greater responsibility’. The railway saw it as a verdict in its favour. The Lords again reversed the decision, ordering a third trial. And another appeal realised 32,000 stamps.

At the third time of asking in 1884, the railway threw in its hand and it was left to junior counsel to sort out damages and costs. If they could not agree then a mediator was to be brought in. Eventually, in July 1884, Chartres Biron, later chief stipendiary magistrate, awarded £500 and £500 costs. ‘Triumph of Right over Might’, crowed Reynolds’s Newspaper.  

 

James Morton is a writer and former criminal defence solicitor

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