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Access to justice has been seriously curtailed by the erosion of legal aid and the underfunding of our judicial institutions. Amnesty International recently reported that the justice system is “increasingly closed to the poorest, most vulnerable and most in need of its protection”.
Should members of the public help to make up the deficit? Access to justice is primarily the responsibility of government. At one time many of us took the view that pro bono contributions both to funding and unpaid professional services merely encouraged government to make even more cuts, but it has become clear that they need no such excuse. Where an issue arises which demands court action, should sympathetic citizens not be free to give their support, financial and otherwise?
As strange as it seems today the common law traditionally prohibited the involvement of third parties in litigation. Maintenance was the crime of supporting litigation pursued by others when one had no legitimate interest in the outcome. Champerty was doing so in return for a share in the proceeds. Barratry was stirring up groundless or vexatious litigation. All these offences were abolished by the Criminal Law Act 1967. Yet there seems to have been no legal objection to seeking financial support after the event. A fundraising campaign followed the acquittal of the celebrated treason trialists in 1794.
The long anomalous survival of these now obsolete offences may well have owed something to the reluctance of the rich and powerful to accept that the poor had an equal claim on access to the law. We no longer share that reluctance and we recognise that the courts are and should be accessible to all. The abolition of restrictions on third party support for litigation created opportunities for profit motivated investment which has been energetically developed in the commercial sphere. Third party funding of public interest litigation has been slower to take off.
CrowdJustice describes itself as a “donation-based crowdfunding platform”. Its aim is to facilitate the funding of public interest litigation by enabling small donors to give via its website. Its involvement in the litigation does not go beyond enabling claimants to raise funds through that source. In order to ensure that the funds are properly managed CrowdJustice will only hand them to the litigant’s lawyer who is subject to professional rules for the handling of client money and protection against money laundering. CrowdJustice retains 5% of donations in order to cover its expenses.
CrowdJustice has been used by claimants to fundraise for judicial reviews, inquests, employment and environmental claims. Recently the junior doctors relied on the generosity of the crowd to assist it in their challenge to the Health Secretary, Jeremy Hunt. It has likewise been called on by the challengers to the Government’s plan to trigger article 50 of the Lisbon treaty without parliamentary authority.
But there are pitfalls which have made some lawyers wary. The client remains liable for the costs of the lawyer whom he or she instructs. In addition, any liability of the client for costs if the action fails or if an adverse costs order is made remains the client’s responsibility, and must be carefully weighed. No doubt where possible litigants will seek protection in advance from adverse costs orders. CrowdJustice itself is not a third party funder, and though case law indicates that “pure funders” are not liable to adverse cost orders, donors may need advice on such risks. These are matters which may not deter but which cannot be ignored.
Like those responsible for the grant of legal aid or indeed any litigant contemplating investing his or her own funds in litigation, the merits of the claim and the prospects of success will be critical.
Inevitably, a vital question is whether the cause and the means of pursuing it are sufficiently attractive to donors. There is no investment aspect in this scheme. Donors cannot expect to get their money back, though in fact, if the case is successful and costs are recovered from the other party, CrowdJustice seeks to reimburse pro rata donors who have committed £1000 or more. Any surplus recovered is passed on to the Access to Justice Foundation or can be used to fund another case on the platform.
Why would anyone contribute voluntarily to the funding of litigation with no prospect of personal gain? The only rational motive is the satisfaction of helping to right an injustice to an individual or a group. The effectiveness and the integrity of this initiative depends on the ability of the potential litigant and his or her lawyer and other supporters to present the facts of the case and the arguments for pursuing it with accuracy and conviction. Fortunately, the achievements of CrowdJustice so far indicate that there are many people willing to donate under these conditions and that as a result it has been possible to bring to court valid claims that might otherwise have been unredressed. Crowd funding clearly has a role in securing access to justice for many who might otherwise be denied it.