Agenda: Crowdfunded Legal Activism Increases Risks for Government and Business

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DISPUTE can be a costly and uncertain affair where the loser is usually liable for a portion of the winner’s costs. Despite this, we are seeing a significant increase in the number of public interest cases being pursued in UK courts. This includes challenges to government over the supply of Covid PPE and environmental stewardship as well as recent actions over police conduct and constitutional issues.

It is arguably an important feature of our society, and reflected in our legal system, that we support the ability of individuals and interest groups to challenge the establishment. Courts can recognize the general public importance of particular cases through Protective Expense Orders (PEOs) that provide some financial protection to litigants if they lose their case. This makes it more viable for an individual or group to pursue a lawsuit, helping to bridge the significant gap in a system where each side must pay their own legal team to bring a case. However, PEOs do not deal with funds that litigants need to pay for their own legal teams. The real game changers on this front have been crowdfunding and social media.

Crowdfunding allows litigants to advance a legal challenge by generating financial support to potentially cover both their own costs and adverse costs. While the establishment of crowdfunding arrangements by instigators of a claim deserves particular attention, it has undeniably increased access to justice in recent years.

Scotland has seen a number of high-profile crowd-funded litigation, including Trees for Life’s successful challenge to NatureScot’s licensing to kill beavers.

Although unsuccessful, the case prosecuted by campaigner Martin Keatings over the power of the Scottish Parliament to legislate for an independence referendum has generated over £225,000 in crowdfunding donations.

Meanwhile, climate change campaigners, under the Paid to Pollute banner, have taken the oil and gas regulator and the UK government to court to challenge a strategy they say wasted billions on ‘supporting industry oil and gas”. Although the original judgment was against the group, they plan to appeal and have used the case to generate a profile for their cause.

The ease with which social media can be used to mobilize support for these types of campaigns and encourage support for crowdfunding platforms, allows large numbers of small donors to contribute quickly and easily to advancing litigation.

The emergence of nonprofits, 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 rise of legal activism. GLP’s mission to “achieve change through law” is supported by individuals who can donate to one of the group’s specific campaigns.

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

Colin Hutton is a partner and litigation specialist at the law firm CMS

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