On 6 November 2024, we hosted a group of experts and leaders from charities, campaign groups and funding organisations to discuss the current strategic litigation landscape in the UK and the opportunities (and challenges) it presents for claimants.
We reflected on the huge recent successes claimants have had, both domestically and in the international courts. But it was felt that the continued growth of strategic litigation has led to a degree of pushback – including increasingly aggressive litigation strategies by defendants, and reluctance in some cases to comply with judgments. There was a general feeling that the courts had become warier of “activist” claimants, with overtly strategic challenges increasingly classified as too “political” to fall within the courts’ remit, and an increasingly restrictive approach being taken to such claimants. Ultimately, our delegates felt those difficulties are a testament to the power and (positive) threat of strategic litigation, but they also underscore the need for organisations to collaborate and share learning and to be bolder and more confident in their ambitions.
Strategic litigation – in public and private claims
There is an increasing trend towards organisations bringing litigation to further their objects or a specific cause. Such strategic litigation is becoming a key tool in an organisation’s toolbox, alongside their usual campaigning and lobbying activity.
Winning such cases can result in a positive legal precedent and in that way a change in the law. But even those cases that don’t end up being successful in terms of the judgement handed down can have huge impact by drawing attention to important issues: litigation is a public forum and in England judgments are usually very detailed and can provide useful dicta for those seeking to put pressure on organisations that cause societal harms.
At the roundtable we discussed how costs and funding are a perennial issue – although not an insurmountable one – and the discussion highlighted different, sometimes creative, solutions. We also discussed how it’s important to pick the right case and the need to take supporters and the court of public opinion along with you. Not all cases will work for that purpose, making this a crucial issue to consider before taking any action as other groups may be better placed to intervene.
What is the value of collaboration with others?
Strategic litigation, despite the big headlines it often generates, in practice is perhaps better characterised by persistence and slowly chipping away at the system. Most success stories are not linear and build on the testing of issues in different courts, contexts and with different claimants, with incremental refinement and adjustment of the legal arguments before the tide changes.
At the roundtable, we discussed the intrinsic value of collaborating with others and learning from the successes and failures of other groups at every stage, from before a claim’s inception to after it is concluded in the courts. Sharing cause-driven legal and strategic knowledge at an early stage allows the “best-placed challenger” to come forward, avoiding duplication of effort and allowing for shared funding, expertise, legal strategy and toolkits. It also creates the opportunity for other groups with an interest in the issue to use their specific areas of expertise to add value by intervening or providing evidence and witness statements to support the best place challenger. Collaboration also encourages development of ideas outside the “echo chamber” of single organisations and sectors.
Funding
Often the biggest barrier to bringing strategic litigation is the cost (both the cost of bringing the claim and the potential for a significant adverse cost order if unsuccessful). We discussed the kinds of funding available to claimants, including crowdfunding, which can be an incredibly effective tool but which comes with its own (relatively unique) set of challenges. There is complexity in choosing the right moment to launch a crowdfunder, and the risks of either going too early (while a case is still at a formative stage) or of leaving it too late (and not raising sufficient funds in time). There are also opportunities to use litigation funders – both grant making organisations that exclusively support strategic litigation, and conventional litigation funders who share in the proceeds of a successful claim. While attendees had experience of claims funded by grant making organisations, working with conventional litigation funders was still relatively rare.
Bringing together charities and non-charitable campaigners, we considered the additional complexities which charities engaging in strategic litigation can run into: from the risk of public or media criticism for being too ‘political’ (despite clear regulatory support for charities’ ability to challenge law and policy) to the governance and regulatory requirements around charities engaging in litigation and the costs risks which it can entail.
Looking beyond strategic litigation
Litigation can be incredibly powerful whether used as a tool to achieve specific outcomes through enforceable judgments and policy change; as a broader campaigning tool aimed at bringing an issue up the agenda and capturing hearts and minds; and even as a fundraising and mobilisation tool. But, while powerful, litigation is rarely fast – and can be resource intensive.
In that context, we explored the role of litigation as one of many options within the campaigner’s wider toolkit: alongside public-facing communications campaigns and calls-to-action, private lobbying – both to corporate actors and legislators – and the provision of technical expertise on matters of policy, for example through legislative processes. Attendees at the roundtable agreed that there are merits of collaboration in all of these areas, leaving the session with a renewed commitment to sharing knowledge and expertise to drive impactful campaigns. If you have any further questions, or would like to discuss strategic litigation action, please get in touch
For more information: