Stuart Farr investigates a potent weapon of the campaigner’s arsenal, crowd funding, and asks if its use could create further legal dilemmas down the line.

Wild Justice was refused permission to open a Judicial Review of Natural England’s licensing of badger shooting

It perhaps goes without saying the shooting industry has been the subject of an unprecedented volume of claims and disputes in recent years. Much of the “thanks” for that goes to the entity Wild Justice which, since its inception, has openly publicised its intention to use the legal system in order to remedy what it sees as injustices against wildlife in and around our countryside.  

The personalities behind Wild Justice will now be familiar and having gained initial success over the general licences a fresh battle is now being fought across different fronts over the release of game birds across the UK. 

It is fair to say the shooting industry wasn’t expecting—and so was not fully prepared for—the first confrontation. That said, the tone has now changed and DEFRA, along with a variety of interested “shooting” parties, are adopting a much more “gloves off” approach and are putting up a spirited defence determined, it would seem, not to be knocked out for a second time.

It has always been the case that litigation of any sort costs money. It is not for the faint hearted and whatever you may think of the ethical position of an organisation which propounds the use of the legal system in order to further its aims, the reality is that so-called public interest litigation of this sort is probably here to stay. 

Procedural integrity

Judicial review is the process by which the courts review the lawfulness of a decision or action taken by a public body. They are a challenge to the way in which a decision has been made, rather than the rights and wrongs of the conclusion reached.

The court adopts a more supervisory role to ensure fair play. More commonly they are used in human rights cases but as we have seen recently, organisations such as Wild Justice have utilised this procedural tool in order to question the actions of various public bodies. 

However, the important thing always to remember is that judicial reviews do not operate to completely reverse an action or decision which has been taken by a public body. It merely focusses on whether all the correct (and lawful) steps have been adopted and complied with.

As such, even if the judicial review is successful in making sure that proper compliance is adhered to, the possibility still emerges that the eventual outcome will remain the same.

In my view that is a subtle distinction which many do not always fully appreciate and it can ultimately lead to disappointment if, even after a successful judicial review process, the practical consequences remain largely unchanged. 

In recent years, an increasing number of cases involving public interest have been crowd funded. Wild Justice is no exception to this and they actively seek funding of legal cases through their website and crowd funding platforms on social media. 

Crowd funding is an alternative means of funding the costs of litigation. In general terms, the person or entity which is seeking assistance makes a “pitch” for funding via a crowd funding provider on the internet and encourages the general public to make donations.

Such donations could be of very modest amounts or, in some cases, much larger four figure sums. The pitch usually sets a target to be met based on the costs which it requires in order to fund the whole action and ultimately the number of individual donations could run into the hundreds or even thousands depending on the “popularity” of the cause.

Donors do not usually have any expectation to recover their money and the belief is the amount of the donation represents the limit of the donor’s responsibility and liability.

However, although crowd funding has become more popular—no doubt because of the ever dwindling availability of public funds available for litigation in the UK—it is still a relatively new concept and therefore by no means “watertight” or without any risk.

Crowd funding for litigation is not specifically regulated and is potentially open to abuse. There are reported cases of pleas for support in matters where there is essentially no reasonable prospect of success—a notable example being a crowd funding plea which circulated to support the prosecution of former Prime Minister, Theresa May for war crimes over Trident. 

Backed by popular demand 

Perhaps most importantly is the fact that crowd funding is heavily reliant on publicity and, particularly, positive publicity. Convincing people to invest via a public forum requires sufficient information to enable people to make informed decisions.

It is often the provision of such information which can assist an opponent strategically and enable a counter attack aimed specifically at undermining the public’s trust in the case or those who are seeking the funding.

And what happens if the case is lost? The normal rule is the “loser pays”. Therefore, if the losing entity does not have the funds to pay, the winning party is—technically at least—entitled to look to those who donated via the crowd funding scheme and, in effect, funded the litigation.

Presently, the donors do not have immunity and given the court can order the disclosure of more substantial donors who contributed over a certain amount (presently seen as around £1,000), it is not difficult to see why at least some of the more generous public contributors might start to feel uneasy should the publicity turn more negative or the entity’s track record for winning becomes less certain.

It is not uncommon in these circumstances, therefore, for the entity to protect itself (and, indirectly, the donors) by purchasing an insurance policy to cover the costs of the winning party should the case prove unsuccessful. In addition, the legal team are often asked to provide their services on a “no win, no fee” basis or similar.

Covering off financial risk with an “After the Event” insurance policy in this way can, by itself, prove expensive. They don’t come free and even if the insurer is prepared to defer the payment of the premium until the end of the case, ultimately these policies have to be paid for somehow. 

Fully comprehensive? 

Which I suppose begs two questions… Is the crowd funding money in any given case being used directly to pay for the legal costs as the case proceeds (which I suspect is most people’s assumption)? Or, alternatively, is the money being used to buy an insurance policy to cover off the risk of losing the case or even some other unrelated case in the future? 

In my view, the distinction is important psychologically. Whereas the first question potentially leads to an answer whereby the donation is to fund a case to win, the answer to the second question leads to the prospect of funding a case which might lose.

I can imagine many people would be less inclined to give any donation to a crowd funding scheme if they knew the funds were held purely to finance an insurance product to cover off any potential adverse costs awards. In other words, dead money.

In most cases the donor won’t be able to tell either way but a clue may lie in whether the target funds required matches the actual cost of getting a case to court or whether it represents only a proportion of the total likely costs needed.

As crowd funding is relatively new, therefore, potential donors need to be savvy in their decision making and should look at all the evidence available, while those entities seeking the funding need to be more transparent as to how the money will be used.

Opponents, on the other hand, will no doubt begin to develop complex strategies to undermine the crowd funding process so as to discourage repeated and protracted litigation.

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