Welcome to our strategic litigation roundup, a place for us to share information with you about key updates and insights in the area of strategic litigation. Our litigation and public & regulatory teams have been keeping on top of developments in this space and continue to explore ways to challenge norms through litigation and policy action with our wide network of clients and experts. If you have an issue that would benefit from being tested to create a widespread positive impact for people and planet, we’re ready to discuss ambitious yet pragmatic options with you.

Recent news and updates:

Insights from the team

Leticia Jennings, Partner and Head of Dispute Resolution & Litigation

It’s been a busy few months since our last roundup. The highlight for me was the victory of the senior Swiss women in their successful challenge to the climate policy of the Swiss government. The decision in Verein Klimaseniorinnen Schweiz and Others v. Switzerland was the first time an international court ruled that state inaction related to climate change violates human rights. Whilst the case does not set a binding precedent on all countries, it does highlight the increased appetite to bring strategic litigation to challenge governmental climate policies through the courts, leading to public scrutiny and sometimes – as in this case – damning assessment. That the victory also demonstrates that climate action is not the exclusive province of the young, is to be welcomed and celebrated.

On 24 September, we’re hosting a webinar to discuss how strategic litigation can drive change, and what steps charities can take to tackle not just the climate emergency, but wider social change. If you’d like to be on the mailing list for the webinar, please sign up here.

Katy Sawyer, Associate

Since the last round up, Leticia and I attended the Climate and ESG Legal Risk Management Summit 2024. A key topic for the conference was the ClientEarth v Shell plc case. The conference reinforced my view that strategic litigation is here to stay. Those defending claims will need to be right 100% of the time, however it will only take a handful of successful cases to turn the tide. Campaigners and activists are turning to the Courts more and more and the statistics show that the number of claims is higher than ever before. Whether or not the claims succeed at trial is not always the key driver in the popularity of litigation: Leticia and I regularly say to clients that it is not (always) about winning (or even taking the case all of the way to trial) – it’s about raising the profile of the underlying issues in the minds of policy makers, decision makers and regulators.

Angela Monaghan, Head of Purpose and Impact Development

Strategic litigation is also a great place to test rights and issues of social justice, even when individual cases don’t get to court. In a recent case that we acted on, the claimant alleged that an AI facial recognition system required to access work was racially discriminatory towards him. While the case didn’t make it to court, the issues raised about the potential for automated decision-making through AI to affect human rights, are expected to mean that developers and businesses who use the software will have to take these considerations into account and may also lead to changes in legislation and regulation.

The material in this article is provided for guidance and general information only and is not intended to constitute legal or other professional advice upon which you should rely. In particular, the information should not be used as a substitute for a full and proper consultation with a suitably qualified professional. Please do contact the Bates Wells team if you require further information.