Agenda: Crowdfunded legal activism increasing government and business risk

LITIGATION can be a costly and uncertain business where the loser is typically liable for a portion of the winner’s costs. Despite this, we are seeing a significant rise in the number of public interest cases being pursued within UK courts. This includes challenges to government over Covid PPE procurement and environmental stewardship along with recent actions over police conduct and constitutional issues.

It is arguably an important feature of our society, and reflected by our legal system, that we support the ability of individuals and interest groups to challenge the establishment. The courts can recognise the general public importance of particular cases through Protective Expenses Orders (PEOs) which provide some financial protection to litigating parties should they lose their case. This makes it more viable for an individual or group to pursue an action, helping address the significant gap in a system where each side must pay their own legal team to bring a challenge. However, PEOs don’t address the funds litigating parties require to pay their own legal teams. The real game changers on this front have been crowdfunding and social media.

Crowdfunding enables litigants to progress a legal challenge by generating financial support to potentially cover both their own costs and adverse costs. While careful consideration is required over the set-up of crowdfunding arrangements by those instigating an action, it has undeniably increased access to justice in recent years.

Scotland has seen a number of high-profile crowdfunded litigation cases, including the successful challenge by the group Trees for Life over the granting of licences by NatureScot to kill beavers.

While unsuccessful, the case pursued by campaigner Martin Keatings over the Scottish Parliament’s power to legislate for an independence referendum generated more than £225,000 in crowdfunding donations.

Meanwhile, climate change activists, under the banner Paid to Pollute, took the oil and gas regulator and UK Government to court to challenge a strategy that they claimed wasted billions “propping up the oil and gas industry”. While the initial judgement went against the group, they’re considering appealing and have used the case to generate profile for their cause.

The ease with which social media can be used to mobilise support for these types of campaigns and drive support to crowdfunding platforms, enables large numbers of small donors to quickly and easily contribute towards bringing litigation forward.

The emergence of not-for-profit bodies including the Good Law Project (GLP), the group behind the campaign demanding that the Metropolitan Police investigate Downing Street parties, has been another key factor in the rise of legal activism. The GLP’s mission of “achieving change through the law” is supported by individuals who can donate to any of the group’s specific campaigns.

Access to the courts has arguably never been easier for individuals and groups seeking to hold companies, governments and other organisations to account for their actions. This rise in legal activism presents a corresponding risk to all those bodies and will need to be carefully managed as it could impact policies and strategic operations going forward.

Colin Hutton is a partner and disputes specialist at law firm CMS

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