Step seven: Resourcing strategic litigation
Strategic litigation can be very costly in terms of finance and staffing. There are costs from retaining a solicitor or advocate as well as potential costs arising from the case itself. For this reason alone, you need to plan very carefully for the impact of the potential cost on your organisation.
You could consider:
You could consider:
- Explore pro bono options - It is often possible to get pro bono legal advice on strategic issues, particularly for the initial legal opinion. See useful contacts in the Resources section.
- Be clear about cost – from the outset, ask your solicitor for clear written information about their costs and court costs at each stage of the process, including what the total cost will be.
- Work with others – is it possible to share the costs with another organisation(s)? By communicating about the strategic issue early on, and collaborating with others, it may be possible to establish a shared budget and staffing for the litigation.
- Protective Expenses Order – In litigation, it is normally expected that ‘expenses follow success’ and that means that the losing party normally pays the legal expenses of the winning party. However, if an organisation is pursuing a ‘public interest’ in entering into litigation, for example, in taking judicial review action, it is possible to seek a ‘Protective Expenses Order’(PEO) (known as a ‘protective costs order’ elsewhere in the UK). An application to the court must be made for a PEO and this can limit liability for costs to a certain amount (known as ‘cost capping’) or state that a party will not be liable for the expenses of the opponent regardless of the outcome.You should obtain legal advice from your solicitor about the risk of being liable for expenses if unsuccessful in your case. Even if you obtain a PEO with a ‘cost cap’ this can still be a significant risk for a small charity. Consider whether a coalition of charities – or separate fundraising – might be able to pool together to set aside the funds necessary to meet expenses within the cost cap if the case is unsuccessful.
- Legal Aid – it is possible for individuals (but not organisations) seeking judicial review of a decision, to obtain legal aid for legal advice and representation in the Court of Session from the Scottish Legal Aid Board (SLAB). Access to Civil Legal Aid is subject to satisfying two tests: financial eligibility and ‘reasonableness in the circumstances’. Reasonableness involves an assessment of the interest of the individual in bringing the case, the prospects of success, and an assessment of the likely costs and benefits. Benefits includes a consideration as to whether or not the case raises a particularly important matter of law or status. If an individual is granted Civil Legal Aid, she will not be liable for all or part of the costs or legal representation, and usually not for any expenses if she is unsuccessful in the case. Sometimes, an individual's financial circumstances are such that she requires to make a financial contribution towards the cost of representation, but her liability will be limited to the amount of that contribution.
- Have you spoken with the EHRC? As a UK-wide organisation with a statutory role in enforcing equality and human rights law, they may be able to pursue judicial review, intervene, provide advice or fund the case.
- Public funding – could you explore using crowd sourcing, or approaching individual donors to fund the litigation? If they are ‘sold’ on the need for the strategic change, maybe they will help to fund it?