On Wednesday 23 March we launched the Strategic Legal Advice Committee with a panel of fantastic speakers dispelling strategic litigation myths and answering questions about how to get involved as an NGO. Here are our top takeaways from the event!
With thanks to our panellists:
- Simon Cox, Michael Spencer, and Shu Shin Luh, barristers, Doughty Street Chambers.
- Sasha Rozansky, partner, Deighton Pierce Glynn.
- Jean Demars, director, Public Interest Law Centre.
1) You don’t have to be an NGO with legal expertise to engage with strategic litigation
Michael Spencer said, ‘[i]t’s much better if you’re able to speak either as or about the people who are affected by the policy in question. That’s much more powerful than necessarily being from an NGO with a well-established legal team.’
2) It’s not true that the only way to engage in strategic litigation is as a party, either as the claimant or the intervener, or by representing a claimant
There are lots of ways that smaller NGOs can get involved with strategic litigation including: speaking to lawyers and providing advice, providing an insight into behind-the-scenes discussions with Government officials, or providing evidence in the form of statistics or case studies, witness statements, and expert reports. As Shu Shin Luh said, ‘strategic litigation doesn’t actually have to be brought by the NGO, so the NGO can be the one scoping out the strategic issue and then working with the solicitor to identify individuals, just to support them to bring the litigation.’
3) NGOs can have a significant impact in the early stages of preparing a case before litigation has begun
It’s useful for NGOs to track patterns or repeat issues as they are occurring in your casework and among the communities you work with. As Shu Shin Luh advised, ‘It’s about patterns of behaviour and patterns of decision-making that slowly emerges as potentially affecting more than just one person but affecting a wider number of people.’ Then, when you have an idea of what you want to change, as Jean Demars says, ‘think of strategic litigation as one part of your toolkit to solve the issue’.
4) NGOs shouldn’t be afraid to tell your lawyer to focus on the issue you want to expose
Simon Cox emphasised the different dynamics of the NGO-lawyer relationship: ‘a lawyer who acts on behalf of a particular client has to advise them based on their best interests and those best interests may be, and quite often are, at odds with trying to fix the generic legal problem.’ Nevertheless, ‘[a] lawyer working for an NGO who are the claimant in a case or who are intervening in a case takes their instructions from that NGO, and if the NGO wants to run the case in a particular way then the lawyer should be running the case in that way.’
Jean Demars also referred to the NGO’s role as guiding their lawyers within a wider context, ‘the litigation needs to always be secondary to campaigning. So the campaign or the charities or the NGOs are the one driving the aim and the aims are always going to be much broader than what can be litigated against. But the litigation can still inject a little bit of steel and some of these victories can be quite important to campaigns.’
5) Think about the value your evidence is adding
Sasha Rozansky emphasised that a court’s approach to NGO evidence will vary, ‘the courts have been inconsistent in their approach to evidence from NGOs. Sometimes the response is really positive.’
As a result, Michael Spencer advised that it’s important to think critically about how you are using evidence, ‘it’s not just a matter of, in every case going off and getting lots of case studies and statistics and witness statements to show that this is a bigger problem. Particularly if you don’t need to show that it’s a bigger problem because it’s obviously a problem for your client. But in other circumstances it may well be necessary to rely on all of that evidence.’
Michael also explained that having a record of your NGO presenting evidence to Government decision-makers can sometimes be helpful further down the line in strategic litigation if it can be shown that the decision-maker failed to take the evidence into account in the course of policymaking.
6) It’s good to remember that strategic litigation has limitations
Sasha Rozansky discussed limitations to what the court and in particular judicial review proceedings can achieve. Successful legal challenges could be embarrassing for the Government or Local Authorities, however, ‘it doesn’t necessarily mean they are going to change the decision and do it better next time. So just […] be realistic about what you want to achieve and whether that can be achieved as a result of the litigation.’
7) Getting board buy-in
Charity boards of trustees are often wary of the cost risks associated with strategic litigation. Shu Shin Luh explained that the nature of the risk is not always understood, as an NGO should be able to apply for a cost protection order, meaning the biggest risk is at pre-admission stage, when cost protection itself is considered. At this stage, ‘the risks of a cost order against you are limited to the acknowledgement of service from the defendant, which even in a strategic case shouldn’t be a vast amount of money and certainly would be subject to some reassessment […] The cost is really to the lawyers who are representing you, spending vast amounts of their time for free at risk until permission.’
8) Think creatively – could you challenge the absence of a policy?
Shu Shin Luh and Sasha Rozansky worked on a case where an individual was suffering abuse from another individual in asylum support accommodation. This wasn’t an instance of domestic violence, instead it was a situation of anti-social behaviour from one stranger to another. However, the Home Office had no policy that deals with this situation, which formed the basis of a challenge. As Shu Shin said, ‘[t]his case led to uncovering others. One case about the need for policy could give rise to others, creating a set of litigation about the absence of policy.’