Rise in number of public interest cases has potential to impact on business - Colin Hutton

Litigation is not for the faint-hearted: it is a costly and often uncertain process where the loser is typically liable for a portion of the winner’s costs. Despite this, we’re now witnessing a notable rise in the volume of public interest cases being pursued within UK courts.

Colin Hutton is a Partner and disputes specialist at CMS

We’ve seen a raft of recent challenges to the UK and Scottish governments over issues such as Covid PPE procurement, constitutional matters, and environmental policy. There have also been recent actions launched over police conduct issues such as the handling of reports of lockdown gatherings at Downing Street.

This rise in legal activism, which is being driven by a number of factors, doesn’t only present issues for governments. It also has the potential to impact on businesses who find their conduct and policies increasingly under scrutiny and the subject of public comment and criticism.

Supporting the ability of individuals and interest groups to legally challenge the establishment is arguably an important feature of our society, and one that is reflected by our legal system. The courts can recognise the general public importance of particular cases through Protective Expenses Orders (PEOs) which provide some financial protection to parties litigating about matters of general public importance should they lose their case. This makes it more viable for an individual or group to pursue an action.

While they can alleviate some of the financial burden of litigation, PEOs do not, however, address the funds litigating parties must find to pay their own legal teams. The real game-changers on this front have been crowdfunding and social media.

The growth of crowdfunding has enabled litigants to launch legal challenges by generating financial support to potentially cover both their own costs and any adverse costs they require to pay if unsuccessful. 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 challenge by campaign group Trees for Life against the Scottish Government. The group launched a crowdfunding campaign in a bid to protect Scotland’s beaver population and was successful in its court challenge against NatureScot, the Scottish Government agency, over the lawfulness of its approach to licensing the killing of beavers.

Constitutional campaigner Martin Keatings received substantial crowdfunded support in his legal challenge against the Advocate General for Scotland over the question of whether a second independence referendum without Westminster consent would be lawful. The case was dismissed by the Court of Session but it generated over £225,000 in crowdfunding pledges.

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 of pounds “propping up the oil and gas industry”. While the initial judgement went against the group, they are reportedly considering appealing and have used the case to generate greater 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.

While much of the initial impact from these trends is being felt by government and public bodies, businesses are also seeing the impact of social media on litigation risk, particularly in the class actions space.

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 driving 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.

Individuals and groups seeking to hold companies, governments and other organisations to account for their actions have been empowered by these recent developments. While this has brought about an increase in access to justice, it also presents an increased legal risk to organisations which needs to be carefully managed.

Colin Hutton is a Partner and disputes specialist at CMS