The use of crowdfunding to access public law litigation is a matter which attracts much online commentary but has thus far, with notable exceptions, received considerably less rigorous scholarly engagement. Accordingly, several important questions remain unanswered as to the dynamics of crowdfunded litigation – amongst others, who are the actors bringing (and defending) these cases, how much money do cases raise, and how do they fare in the judicial review system? In a recent article published open access in the Modern Law Review, I report the results of an empirical study which charts the landscape of judicial review crowdfunding systematically for the first time. In the study, I analyse 413 crowdfunding pages by people seeking funding for judicial review claims, posted on CrowdJustice, the leading litigation crowdfunding website. Here, I highlight some of the study’s results, and emphasise the difficulties facing prospective litigants in accessing judicial review, even with the advent of crowdfunding, a problem which has, previously on this blog, been termed ‘public law’s disgrace’.
The Dynamics of Crowdfunded Judicial Reviews
The 413 judicial review claims were located by sampling all fundraising pages within CrowdJustice’s ‘Judicial Review’ category, as well as manually identifying pages which were not labelled in that category but which sought funding for judicial reviews, by looking at the profiles of all other UK-based pages and interpreting whether pages were for judicial reviews. The dataset thus captures the vast majority of CrowdJustice pages for judicial reviews from its inception in 2014 to November 2020, although some have possibly been missed in the manual analysis.
Across the 413 crowdfunding pages in the study’s dataset, there was considerable variation in the characteristics of the actors seeking funding. That said, what is notable is the prevalence of cases brought with a collective focus, whether strategic challenges to government policy brought by repeat litigant NGOs, or local community groups seeking to defend communal resources, such as healthcare services facing closure or areas of protected landscape affected by proposed development. Indeed, of 413 cases, I coded 202 as having a national-level focus, and 164 taking a local-level focus, in stark contrast to only 47 cases which concerned the claimant’s individual household, such as cases concerning a claimant’s entitlement to social security benefits, or challenging a leave to remain decision.
Turning to subject matter, by far the most common field of activity was environment and planning, with 146 cases, representing 35% of the dataset, considerably higher than in previous research on the wider judicial review caseload. This was followed by health and social care with 56 cases (14%), and education with 41 cases (10%). While immigration and asylum-related judicial reviews tend to account for the vast majority of claims overall, here they only contributed 30 cases (7%). Unsurprisingly, given the prevalence of planning claims, local authorities were defendants in 136 claims, with the Home Office in 32, and the Department for Health and Social Care in 28, the second and third most common defendants respectively.
Notwithstanding the diversity of activity, then, it might be said that the closest thing to a ‘typical’ crowdfunded litigant is a local community group acting in the realm of planning, commonly challenging grants of planning permission. This should serve as an important reminder that the image of what is happening in the field in practice can be distorted by focusing on the most high-profile organisations, such as the Good Law Project. This picture of the crowdfunding field certainly adds to recent calls to take planning law more seriously as a key administrative context in our understandings of judicial review. It also highlights the perhaps understudied role of local community groups in bringing litigation with a collective – indeed, ‘public interest’ – focus, particularly in light of calls to ‘think globally, act locally’ in the context of environmental challenges and the climate crisis.
By the time of the study’s conclusion, 330 cases had been completed – whether they were settled out-of-court on favourable terms for the claimant, withdrawn by the claimant for a reason other than settlement, or had concluded their journey through the courts. Of these 330 cases, and taking a relatively narrow view of success – that is, either settling out of court on terms favourable to the claimant, or succeeding in court – at least 93 cases saw claimants achieve a positive outcome (28%). Success rates are notoriously difficult to quantify, and it would be unwise to compare the figures from the study with official statistics on success rates in the wider judicial review caseload, for reasons the report of the Independent Review of Administrative Law has noted:
Measuring the ‘success’ of judicial reviews over time is a difficult task. The main problem is that the Administrative Court data sets do not capture the reasons for cases being withdrawn. It stands to reason that a proportion of these would have been settled, and a proportion of those would have been settled in favour of the claimant.The Independent Review of Administrative Law (CP 407, 2021) 173
Suffice it to say, though, that the success rate among claims in the dataset does not indicate that crowdfunding gives rise to a high number of unmeritorious applications – some may have feared this, due to a small number of high-profile meritless, and sometimes poorly-managed, cases raising substantial funds due primarily to political salience. This is not to be misinterpreted as dismissing the problems of crowdfunding – the minority of problematic cases are concerning, and there is a discussion to be had about the appropriate regulatory response in light of them, especially as lay people may invest their finances and hopes in unmeritorious claims and experience disillusionment with the legal process when they are disappointed. Rather, it is to place these instances, and the extent of calls for regulation, in the context of a wider caseload in which these cases are far from representative, and to sound a note of caution on too readily disrupting the prospects of many responsible claimants on the basis of that minority of cases. Indeed, of the cases recorded as reaching the permission stage of judicial review, which is intended to remove unarguable claims from the caseload at an early stage and so can reasonably indicate cases’ merit, 129 claims were granted permission and only 54 were recorded as being refused, comparing favourably with the wider judicial review caseload.
How Much Does Crowdfunding Raise?
The potential of crowdfunding to equalise access to justice and erode financial exclusions is, of course, contingent on its capacity to generate sufficient funds for claimants to litigate. So, how much do claimants tend to raise?
Taking the mean figure, the average sum a case in the dataset would raise was £22,191, and the median figure a case raised was £8,046. This does not paint the full picture, however. What was stark was the presence of statistical outliers, that is, cases raising sums outside of the usual bounds of the dataset, which differ considerably from the bulk of the data. 52 such outliers were identified, all exceeding the upper bound of £47,382.50. This includes a number of cases brought by the Good Law Project, Chris Packham’s case challenging the decision to continue developing HS2, and the challenge by the Transport Action Network to the Road Investment Strategy 2 road-building programme. At the time of the research, the highest sum raised was £422,758, in the challenge to the lockdown regulations brought by Simon Dolan. This has since risen and concluded at £427,307, and it has been narrowly overtaken by a claim from the Good Law Project which reached £427,399 after the period of research. Those 52 outlying cases were responsible for raising almost 2/3 of the total money across the dataset, and when they were removed, leaving the other 361 cases, the mean and median values raised were, respectively, £10,209.90 and £6,330.
Tom Hickman estimated in 2017 that losing a ‘very simple two hour judicial review claim against a government department’, that is, ‘the cheapest end of the spectrum’, would likely produce adverse costs of £8,000-12,000, while a one-day ‘moderately complex’ claim against a regulatory body would generate over £40,000, and a substantial two-day case approaches £80,000-£200,000. In addition, the uncertainty as to the possible ultimate level of adverse costs creates further difficulty for prospective claimants when considering whether litigation is viable. In view of this, it should be apparent that, for most litigants raising the sums typically accrued via crowdfunding, litigation remains something not to be undertaken lightly, and very often the high costs risk will produce attrition of crowdfunded cases.
On its own, it is rare that crowdfunding will remove these financial hurdles – crowdfunded litigants will regularly also rely on agreeing costs-capping orders with defendants, or on the court granting such an order, to limit the potential adverse costs they would face upon losing a claim, providing a more certain and reduced figure. In the environment and planning field, the ‘Aarhus costs rules’ are particularly pivotal, capping the adverse costs recoverable from the claimant by the defendant at £5,000, where the claimant is an individual, or £10,000 for a group claimant (with a reciprocal cap of £35,000 on recoverable costs from defendants where a claimant succeeds). There is also the matter of the claimant lawyers’ fees – where crowdfunding raises modest sums, as tends to be the case, it is common to see lawyers engaged on a conditional or discounted fee basis, or acting pro bono. Crowdfunding has thus not eroded the need for other mechanisms of facilitating claims – rather it very frequently needs to be used in conjunction with existing tools to navigate a costly, and risky, procedural landscape.
Rather than giving rise to a vast wealth of spurious litigation attracting excessive funds, then, it remains the case that, even among local and national interest groups turning to crowdfunding to litigate collective disputes, claimants face a difficult time when coming to judicial review and are met with financial exclusions. While it is an incredibly influential feature of the current patchwork of tools for accessing judicial review, there is a risk of viewing crowdfunding in isolation from the procedural safeguards and practical attritions that claimants encounter – it neither uncontrollably opens the floodgates of the judicial caseload to meritless political activism, nor represents a panacea for reversing public law’s disgrace.
The full article in the Modern Law Review can be accessed here.
I am grateful to Joe Tomlinson, Alison Young, and Mike Gordon for helpful comments on previous drafts of this post.
Sam Guy (@SamJ_Guy), PhD Candidate, York Law School, University of York
(Suggested citation: S. Guy, ‘Eroding Public Law’s Exclusions? Charting the Landscape of Crowdfunding in Judicial Review’, U.K. Const. L. Blog (8th November 2022) (available at https://ukconstitutionallaw.org/))