Justice denied

We are all familiar with the phrase that 'justice delayed is justice denied'. But increasingly in the UK it is simply denied.

Our MPs appear convinced as committed parliamentarians that the answer to any problem is to pass a law against it. But rarely do they seem to ask themselves how that law will be enforced. Will it be the under-resourced police, or the stretched CPS or, even heaven forbid, the Environment Agency? If those bodies fail to do their job diligently can they be held to account, and by whom? How long will it take to get to court, and who will pay for it? Because public interest lawyers doing the most important work for society do need to be paid occasionally.

For too long all these difficult issues have been ignored or sidestepped, while yet more (often poorly drafted and evidenced) statutes are added to our tottering common law system.

Law For Change, which we founded in early 2023, was in part born out of frustration at the wretched state of public law enforcement in the UK. We established a modest fund that would receive requests for financial support from law firms and NGOs looking to enforce the law in a way that would benefit a large class of persons. Generally that would involve suing government or some quasi-governmental institution, often by means of judicial review.

Our thinking was two-fold. First, that cases against the state are by their nature more likely to impact many citizens. But also paradoxically that, relatively speaking, it can be far cheaper to sue the government than a commercial body. At its simplest, it could be prohibitively expensive to sue Thames Water for its many derelictions of duty, because of the legal resources it would expend rather than devoting them to limiting sewage spills. But it would be far less expensive, and indeed could benefit from various cost capping measures, to sue the Environment Agency for its own manifest failures in its duties to the public.

One of our reservations was that a state that has already shamefully cut legal aid and in other ways dismantled our courts and enforcement bodies, might tell itself that philanthropy had come to the rescue and it could lean even further back. But we couldn’t ignore that today, and every day, so many of our citizens are suffering though being denied fundamental rights.

Probably the best way to illustrate this is to talk briefly about four cases where we were the sole external funder. Since our launch in March 2023, we have supported around 60 cases, so this can only be a snapshot. Fuller details are on our website.

In July the Supreme Court ruled that a fracking permit had been granted in breach of environmental protection regulations. The Finch case is now frequently cited as seriously constraining many extractive projects in the UK that would undermine achievement of our climate goals. Just this week the consents for drilling in the Rosebank and Jackdaw fields were overturned by a Scottish judge relying wholesale on the Finch ruling.

Last January the Employment Tribunal found that Oxford University had to grant proper employment contracts to academics who had been engaged on sham 'zero hours contracts'. The practice is widespread in UK academia but Oxford is statistically the worst offender.

In the highly publicised case involving the murdered child Sara Sharif, a judge made an extraordinary ruling that the identities of judges involved in earlier proceedings could not be published. We paid the legal fees and court costs of two Tortoise journalists who successfully challenged that ruling in the Court of Appeal.

Finally, and again only last week the Court of Appeal ruled in favour of Kristina O’Connor, against the inexplicable failings of a police misconduct panel not to impose adequate sanctions on a police officer who they accepted had sexually harassed her.

These cases demonstrate the range of issues we take on, and the demand for assistance in so many vital areas of law. Very often we find that claimants and NGOs are able to find a lawyer to act pro bono or on a conditional fee basis, or can crowd-fund to cover their own legal costs, but what they cannot take on or fund is the possible adverse costs if they lose. Therefore an increasing share of our funding goes into providing indemnities against those costs. And our funds have gradually increased; in addition to contributions from our founders we have received sizeable grants from a number of grant-makers including Esmee Fairbairn, Disrupt Foundation and Proton.

In assessing the prospects of success we are hugely assisted by a legal panel of experts, now around 100 lawyers, who will look pro bono at applications we send to them. We have also recently secured a substantial level of additional indemnification against adverse costs. Litica Ltd – a specialist MGA whose principal business is adverse costs insurance – has agreed to provide this indemnification for a token £1, which has allowed us to take on more cases than our resources would normally support.

And finally, it’s very comforting to see our work getting public recognition, including a Legal Hero award from the Law Society in September, being shortlisted by LexisNexis for its annual awards taking place in March and being profiled in the latest Big Issue. All of these should help alert law firms out there that we exist and might be able to help them get their case over the line.

Stephen Kinsella, Law For Change