Over the past six months there continues to be an appetite to use the tools of strategic litigation to create accountability and address harms. We’re using this roundup to share information about key updates and insights in the area through litigation and policy action.
Strategic litigation has had a significant impact on decision-making, policy setting, and legal changes throughout 2024. As well as the success of KlimaSeniorinnen Schweiz, there is an increasing focus on holding polluters accountable for their actions, with legal challenges targeting water companies and agricultural organisations. These cases aim to test and strengthen existing environmental protections while pushing for legislative changes.
Insights from the team
Funding and scoping
Funding for strategic litigation can cause a significant barrier to action being taken. In November, we hosted a roundtable to discuss the present and the future, the threats and the opportunities for this sort of action. We brought together experts and leaders from charities, campaign groups, and funding organisations to discuss the current landscape of strategic litigation in the UK. As well as highlighting the recent successes claimants have had both domestically and internationally, it was also noted that there is pushback from defendants and the courts. While there is a growing trend of organisations using strategic litigation as a tool to further their causes, the challenges of funding such litigation, and the need to pick the right cases to maximize impact cannot be diminished. A highlight from earlier in the year was a webinar we hosted in September to discuss how charities can use the law to create a widespread positive impact for people and the planet. Paul Benson (ClientEarth), Jake White (WWF UK), Joss Saunders (Oxfam) and Bonike Bracewell (Save the Children UK) shared insights into how they decide which matters to pursue and detailed their consideration of scoping, risks and key considerations, overcoming internal and external challenges, how brand reputation feeds into the decision process and strategies for engaging in the right issues with limited resources
Climate and biodiversity
In a landmark judgment, R (Finch on behalf of the Weald Action Group & Others) v. Surrey County Council (& Others), the Supreme Court found that Surrey County Council’s decision to grant planning permission for an oil production project was unlawful. This was because the environmental impact assessment (EIA) considered by the Council did not assess emissions that would arise from the eventual combustion of the oil, known as downstream or “scope 3” emissions. The case has the potential to change the landscape of planning decisions in the UK.
In the autumn a demonstration for clean water highlighted the impacts of severe water pollution in England. Only 14% of English rivers have a “good” ecological status, and over 10% of freshwater and wetland species are threatened with extinction. In response, the Labour Party introduced the Water (Special Measures) Bill in September 2024, aiming to crack down on water company misconduct. The Bill empowers regulators like Ofwat to block executive bonuses, introduce a “fit and proper person” test for senior staff, and impose tougher penalties on individuals obstructing investigations. However, some argue that the Bill lacks ambition and clarity regarding obligations and enforcement roles. We expect further scrutiny of the government’s strategy in an area where litigation has already been effective.
Social justice
Over the summer five activists for Just Stop Oil were convicted of conspiring to cause a public nuisance following protests that they carried out on the M25 motorway in November 2022. The defendants argued that their actions were justified due to the climate crisis, but this defence was rejected. The convicted protestors received lengthy prison sentences, which have been criticised by the UN and other organisations. The decision has implications for future climate activism and the legal landscape for non-violent protests
In September, the findings of the Inquiry into the Grenfell Tower fire were published, 7 years after the devastating fire that resulted in the death of 72 people and the injury and trauma of hundreds more. The report, authored by Sir Martin Moore-Bick, highlights decades of institutional failings in fire safety and construction standards. It condemns private firms, public authorities, and government members for their “deliberate and sustained strategies to mislead the market” regarding cladding product safety, a “cavalier attitude to regulations affecting fire safety,” and a “pattern of concealment”. The findings emphasise that the fire was entirely avoidable and that the victims were failed at almost every level. There is a clear role for public law and regulation in ensuring accountability and preventing similar tragedies in the future.
If you have an issue that would benefit from being tested to create a widespread positive impact for people and the planet, our Dispute Resolution and Public and Regulatory teams are ready to explore pragmatic options with you.