Welcome to our latest round-up of developments in strategic litigation.
In this edition, we cover a range of developments from the UK and overseas. A common theme is the lasting impact that decisions can have in developing jurisprudence, policy and playbooks for claimants. Last year’s Supreme Court decision in Finch is a case in point: we discuss how the reverberations are continuing to be felt. Even when the claim ultimately fails, as in the much-publicised case brought by a Peruvian farmer against energy multinational RWE, judicial comments can still pave the way for future litigation.
One of the major challenges for any piece of strategic litigation is funding the claim, and managing the risks of adverse costs awards. Following the recent report by the Civil Justice Council on the future of litigation funding, we will be hosting a webinar in September at which we will share the latest thinking and practical insights – and in the meantime, you can check out our guide, produced with NEON, to using the law to drive positive change.
In brief
- In Germany, the long-awaited decision was delivered in the case of Lliuya v RWE, in which a Peruvian farmer sought compensation from the energy multinational for climate change-related losses. While the claimant ultimately lost, finding private companies can be held accountable for their contributions on climate change could pave the way for further, similar actions in the future.
- The Inter-American Court of Human Rights has issued an advisory opinion stating that there is a human right to a stable climate and States have a duty to protect it: Inter-American Court of Human Rights – Advisory Opinions
- Closer to home, River Action was successful in a High Court action to overturn the approval by Shropshire Council for a 200,000-bird intensive poultry unit near the River Severn. Alison Caffyn, one of River Action’s directors, brought the case and successfully argued that the council failed to carry out a lawful in-combination assessment of the development’s environmental impact.
- The Civil Justice Council has published its final report on the future of litigation funding in England and Wales. The CJC recommends introducing a regulatory regime for litigation funding, including provisions to regulate crowdfunding.
- The LSE’s Grantham Research Institute on Climate Change and the Environment has published its latest snapshot report on global trends in climate change litigation. The report identifies that the overall rate of growth in climate litigation slowed during 2024 and political headwinds are translating into an increasing number of non-climate-aligned cases being brought. Nevertheless, the report finds that, with several high-profile cases, some of which reaching the highest courts in the jurisdiction, “[t]he broader impacts of climate litigation are becoming increasingly visible and well-documented. This includes impacts on climate governance, legislation and financial decision-making.”
Bates Wells insights
Challenging cuts to overseas aid
Bates Wells is acting for the charity ONE Campaign in relation to a challenge to the government’s decision to cut spending on overseas aid to 0.3% of GDP, in order to fund an increase in defence spending. In its judicial review pre-action protocol letter, ONE argued that the government had not set out a plan to redirect funding back from defence to aid, meaning that the change could be expected to continue indefinitely. A permanent change should have been affected through primary legislation, and having regard to the government’s statutory duties to reduce poverty and advance gender inequality. ONE published an update on the case on 7 July.
Collective claims set to be the “big show” in London
The English courts are seeing an increase in international group actions, with claimants starting to target groups including international charities and NGOs, as well as multinational corporates. As part of London International Disputes Week, Bates Wells hosted a discussion on the rise of international mass tort claims in the English courts.
Commercial Dispute Resolution covered the event, which included speakers from Henderson Chambers, Grant Thornton and Bench Walk Advisors, alongside Bates Wells partners Tim Constable and Leticia Jennings. The panel discussed themes in mass tort litigation and the potential impact of changes in litigation funding if the CJC’s recommendations are taken forward.
Using the law to create change
Legal action is rarely enough to drive systemic change on its own, but the law can be a powerful tool for purpose-driven organisations, especially when combined with other tactics within a broader campaign strategy.
Bates Wells has partnered with social justice consultancy NEON to produce a guide for charities and campaigning groups on how to use strategic litigation and other legal mechanisms to help create meaningful change. We are hosting a webinar to discuss the guide on Thursday 10 July; you can still sign up here.
The downstream impact of Finch v Surrey County Council
A year on from the landmark judgment in Finch, Helen Fry and Leticia Jennings look at how the Supreme Court’s findings have been interpreted and built on. Claimants including Friends of the Earth, Greenpeace and River Action (as discussed above) have relied on the decision to successfully challenge planning decisions.
Planning authorities will also have to take into account the Finch precedent in their decision-making on major infrastructure projects, such as additional runways at Gatwick and Heathrow.
How environmental organisations can use the law as a force for good
Writing for sustainable business publication edie, Leticia Jennings gives an overview of some of the major strategic litigation decisions in the UK and overseas over the past year. Action against pollution was a major theme, in cases such as Manchester Ship Canal, and international tribunals such as the ECHR decision concerning a group of Swiss senior citizens.
Leticia also offers her thoughts on the tactics available to campaigning environmental organisations to challenge decisions of the state, target polluters or influence policy decisions.
Webinar: Strategic litigation funding for charities & NGOs
On 11 September, Bates Wells are hosting a webinar on funding strategic litigation, covering how to work with litigation funders, crowdfunding, costs capping orders to protect from adverse costs, and more. You can register for the webinar here.
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.