Strategic litigation is an exciting and increasingly important topic and charities are at the forefront. From challenging government policies to highlighting greenwashing, participating in inquiries and supporting others to bring or defend claims, litigation can be a valuable tool in pursuing charitable purposes, raising awareness and driving change.
On 24 September 2024, we hosted a webinar on how charities can use the law to create widespread positive impact for people and the planet. Chaired by Leticia Jennings, Head of Dispute Resolution and Litigation, our panel consisted of Paul Benson (ClientEarth), Bonike Bracewell (Save the Children UK), Joss Saunders (Oxfam) and Jake White (WWF UK).
Drawing on their own work and experiences, the panel discussed:
- How strategic litigation can help to achieve your goals
- How to decide which matters to pursue – scoping, risks and key considerations
- Overcoming internal and external challenges
- How brand and reputation feeds into the decision process
- Strategies for engaging in the right issues with limited resources
- Proven effective litigation strategies, including choice of forum and jurisdiction
- How you can exploit opportunities outside of litigation, including social media and PR
- Funding including the future of litigation funders
- Horizon scanning about the future of strategic litigation
In this roundup, we summarise the discussion and key take-aways.
How do you go about deciding which matters to pursue and what features in your risk assessment?
Every piece of litigation pursued fits into a broader campaign. Sometimes it’s planned, sometimes it’s opportunistic. Potential cases are scoped and one might be picked to pursue. Security is a massive issue. Campaign leads start the discussion, the lawyers have to fit the case into the campaign. Impact is crucial – how much impact would a case have and is it worth it. Cases must have merit to get stakeholders behind it.
How does one overcome institutional caution? Internal lobbying is important but it can take time. A charity’s brand and reputation need to be considered, including vis-à-vis donors. What’s your experience of getting internal buy in and do you have any practical tips or experiences you could share?
You need to build a business case to get internal buy in. You need to do a thorough risk assessment centred on the charitable objective, the strategic objective, the advocacy objective and look at all of the risks and opportunities. Policy, advocacy and campaigns teams will need to work with the legal team to plan. Do it early – think about and plan for possible scenarios. The business case then goes to the executive team to raise issues e.g. brand or reputation management, before going to the board. Thoroughness is key – get all of the issues addressed early on to allay concerns.
Regarding funding & resources, whilst charities are understandably cost conscious, they are also willing to be flexible, including pooling resources with other charities, crowdfunding, or turning to litigation funders. What’s your experience of funding litigation – what’s worked well and perhaps what’s worked less well?
Think about the particular claim – community-based claims can lead to very effective crowdfunding. A charity also has its own resources and if charities want to bring litigation as part of delivering its strategy it needs to put funds aside to pay for it. Larger charities can fund more, particularly to fund cases of those with less resource but with an authentic voice in the litigation.
A charity’s own costs can be controllable to an extent, or at least budgeted for and managed. The issue of adverse costs – the usual rule being that the loser pays the winners costs – can be off putting. What about adverse costs and how do you deal with the risk?
Part of the risk assessment – you have to know what you’re in for. Part of the system in England and some other jurisdictions. Not all jurisdictions or types of claim do. Charity Commission has rules – charities need to demonstrate a charity has thought about it. Value for money in terms of impact are important. Litigation funders and trusts and foundations are also sources of help. Can sometimes agree fixed or own party only costs. Cost risk can deter charities from bringing claims.
What about brand and reputation? Does the need to litigate ever compete with your need to protect your organisation’s long-term credibility and trust?
Being prepared to go to court to fight for certain things can add to credibility. Donors might like and expect charities to bring certain claims. Yout media team can help frame it effectively. Brand and reputational issues feature as part of the initial risk assessment.
Jurisdiction is obviously a huge issue. Where to litigate is not always a choice, but sometimes, choosing where to litigate can be a strategic decision. For example, bringing litigation in England & Wales to bind a parent company in a way that contributes to an issue in Latin America. What’s your experience of choosing where to bring a claim and what factors do you consider?
Key considerations include cost regimes, openness of legal framework (civil, common law, etc), local partners’ participation and where the defendants are located. Quality of judiciary is also important. England is a good, relatively interventionist, jurisdiction with flexible rules on standing. It is also a fair process. Its judges are independent and their judgments are robust, globally respected and can have precedent impact. The cost downsides in England are outweighed by the ability of an English judgment to reverberate around the world, more so than other global north jurisdictions.
What do you think are the barriers to not doing more in this space? Is it just budget and time or are there other key factors?
Reactionary nature of work; small inhouse team and capacity to do litigation; need for network of corporate partners. Working to be more proactive. Where can we allocate resource to leverage most impact.
There is much that can be done pre-action. A well crafted letter before action from a serious firm of lawyers can put sufficient pressure on the recipient to bring them to the table or to halt whatever misfeasance is in issue. Do you always jump to litigation or are there other steps to be taken effectively first?
If you’re going to make a threat you need to be willing to carry it out otherwise you’ll have no credibility. You need to build legal argument into campaign advocacy early on. It can be increasingly assertive. Point out implications to government, etc. Pre-action correspondence can be immensely useful but depends on opponent – they need to be sensible and in receipt of sensible legal advice to take it seriously. On the flip side, you don’t want your opponent to cave too early otherwise you lose months of campaign publicity, which you will have planned to exploit as part of the overall campaign. And some opponents need a court order to change.
There are many instances of charities pursuing claims which don’t ultimately succeed in court but where the aim has been to raise awareness. How important is strategic litigation in raising profile of issues, even if the litigation isn’t successful?
Litigation is public – it can raise awareness of an issue over months or years even, even if claim is ultimately not successful. Litigation can deter other players who see the litigation and don’t want to be sued next – it can lead to a company changing.
Charities are becoming much more savvy with PR and social media and effectively using litigation – which is a public forum – to generate public interest – pushing the boundaries, having a systemic impact, for the greater good. What’s your experience of using PR and the press to advantage?
Media attention is absolutely essential. It’s part of the campaign strategy and it must be planned carefully. International press is a possibility. You need to be careful not to be seen to be bringing poor claims just as protests or campaign vehicles – must have some merit otherwise charities risk losing credibility with the judiciary.
What strategies are there for managing communications around an adverse decision?
Litigation needs to be firmly rooted in wider strategy. You need to get your comms team involved from the start. You need to be open about losing a case but be able to pivot focus back onto issue the litigation was intended to address.
For charities, litigation will likely form part of its overall package of tools to pursue charitable objects, along with lobbying and campaigning for policy change. All of our panellists have experience of strategic litigation to a lesser or greater degree. How have you seen strategic litigation as a tool at your disposal and also how do you see strategic litigation evolving in the future?
Litigation has always moved the dial. The legislature is forced to catch-up. Right back to the abolition of the slave trade, through to the modern day around equality cases and human rights. The public nature of litigation is crucial – oil and gas companies, Big Pharma etc. cannot hide from the rule of law and cannot keep matters private. Judgments move matters up the in-tray of decision makers – they have to take notice. Litigation can galvanise people – it’s strategic because it changes the law AND because it galvanizes people. The courts may take time to wake up to issues but they will if charities keep plugging away, sometimes bringing a series of similar cases. Some cases are won, some are lost, but they’re all building towards change.
What about litigation funding? What more could that industry be doing to help charities pursue claims effectively?
They could look at their profit margin. Move away from just big value or high-volume cases because they’re easier to understand. Be more forward looking about the potential impact of a case to unlock other cases which are worth more money to funders but which could have huge impact in the meantime. Work with charities when considering cases, don’t view all cases in black or white. Crowdfunding could be better utilised – if everyone who signed a petition also donated £1, you would get many claims off the ground.
Useful resources:
The 1994 Roscoe Pound Lecture: Transnational Legal Process (unl.edu)
Social Rights Judgments and the Politics of Compliance
Climate Change Liability: Transnational Law and Practice
Covid-19 Public Inquiry – Save the Children UK
Turbulence ahead: 20 airlines targeted by EU over greenwashing
Strategic litigation: driving change and positive impact – July 2024 roundup
If you have any further questions, or would like to discuss strategic litigation action, please get in touch.
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.