Public Interest Litigation
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> What makes an effective "strategic/test case"?
> Strategic/Test Litigation - criteria
Definitions
Public interest litigation: litigation which seeks to change the law as well as securing a benefit for the individual involved. It can involve doing a number of cases or strategically choosing a test case.
Royal Hospital Kilmanham, Dublin, 6 October 2005: Canadian public interest lawyer Ellie Venhola, FLAC Director Noeline Blackwell and the Hon. Mrs Justice Catherine McGuinness, at the FLAC conference on Public Interest Law & Litigation in Ireland. Picture by MacInnes.
- The Public Law Project in the UK (www.publiclawproject.org.uk) defines a "test case" as a "...case which establishes a new point of law (through change or clarification) or applies in a particular locality a point of law developed elsewhere...." They characterise an effective test case as: the combination of an agenda; a litigable point of law; and a campaign.
- The Public Interest Law Institute (www.pili.org) in Budapest defines strategic litigation as a "...strategy that uses the justice sector to achieve legal and social change through test cases...."
- Gerry Whyte, author of "Social inclusion and the legal system - public interest law in Ireland", notes that traditional litigation has been described as a "self-contained episode". This is a helpful characterisation as it neatly contrasts the defined impact of private litigation with the wider impact of public interest litigation.
What makes an effective "strategic/test case"?
- The following comments are intended to provide useful pointers. Needless to say, they cannot provide a definitive guide to strategic/test litigation! Litigation is far from being a precise science.
- Litigation is a last resort. It is not an end in itself. Court cases are costly, stressful, time-consuming and -crucially - uncertain as to their outcome. It may be much more effective to resolve a legal issue by another route. However it may be that time constraints or circumstances mean that litigation is the only avenue - or at least a necessary part of a wider campaign strategy.
- It is worth pausing to consider what is meant by "effective" litigation. This in turn will depend on what the litigation objective is. A case may achieve victory for the individual litigant; however, it may be open to the government to amend legislation subsequent to a court victory so as to negate any wider effect. This danger highlights the value of incorporating other elements such as lobbying and well-timed and positive media coverage. These measures will at least serve an effective purpose in drawing attention to the issue, generating public debate and putting political pressure on the government.
- A few rather obvious but necessary preliminary points:
- The litigation objective should be identified and critiqued from the outset. This practice should assist in focusing the mind as to whether litigation really is the appropriate route.
- It is important to identify the correct defendant, e.g. the public body who had the power in law to act in the way one is alleging it should have.
- Statutory time limits should be borne in mind from the outset.
- An effective strategic/test case will be based on strong facts which are not exceptional so as to be easily distinguishable. The importance of this is that whilst an exceptional case might achieve individual success, if easily distinguishable on its facts, it may not serve any wider purpose.
- As in any litigation, the client should be apprised of the risks of litigation: costs, losing the case, stress, negative media coverage. It is particularly important in strategic/test litigation to communicate clearly with a client from the outset to ensure that the client understands that their particular case is being used for a wider purpose. It goes without saying that notwithstanding the litigation's strategic aims, the client's instructions remain paramount. The possibility that the client may agree to settle must be taken into account.
- Case-law generally develops incrementally. It may be prudent to develop a certain point of law gradually, rather than inviting the court to draw what appears to be a radical conclusion on one set of facts. This is of course much easier said than done.
- The Public Law Project (www.publiclawproject.org.uk) considers that the most effective strategy is to identify an area where public law has potential but is underused, draw together the main players and identify points which require resolution.
Co-ordination
- Effective communication and coordination between NGOs can potentially lead to identifying and working collaboratively on effective strategic/test cases.
- It may be that a pattern of poor decision-making by a particular public body affects a certain group. Where different NGOs have different examples of such poor decision-making, it may be appropriate to formulate a coordinated strategy whereby the "strongest" set of facts is elected as a lead case. There may be one more established NGO with a greater pool of expertise to draw on to assist. A co-ordinated strategy may also be appropriate where an issue cross-cuts different areas of substantive law (e.g. welfare and housing) and NGOs can pool respective areas of expertise.
Media
- The media can be friend or foe. Where possible, media coverage should be well managed to draw positive public attention to the issue being litigated. The potential for any negative coverage should have been factored in.
Third parties
- Thought should be given as to whether it would be assist if an amicus curiae intervened or whether expert evidence might assist. Where a party is seeking a declaration of incompatibility under the ECHR Act 2003, they are statutorily obliged to notify the Irish Human Rights Commission, who may exercise their power to intervene as amicus. The IHRC has intervened in a number of public interest cases. In addition the IHRC has a statutory power to instigate proceedings however has not exercised this power to date.
Law
- Strategic/test litigation protecting human rights will often rely on Constitutional law and domestic or international human rights law. The ECHR Act 2003 should provide new scope for argument. This is not advocated for its own sake but rather in acknowledgment of the statutory duty incumbent on "organs of the state" to act in compliance with Convention provisions. Where domestic legislation does not permit such public bodies to act in a Convention-compliant manner, it may be appropriate to seek a declaration of incompatibility. Both public bodies and practitioners should appreciate the potential import of Strasbourg jurisprudence when considering public bodies' duties and exercise of their powers.
Post-litigation implementation
- Even where litigation is successful, that is not the end of the story. The government may need to pass amending legislation and if so, it is important to scrutinise such amending legislation in order to ensure that it gives meaningful effect to the judgment. Alternatively, the government may need to deal with a stack of cases awaiting decisions on the same point as the "test case" and it will be necessary to ensure that the relevant public body applies the law properly in respect of those cases. Civil society has a role to play when it comes to monitoring the implementation of court decisions, which may mean long-term commitment to the issue. Communication with the relevant government department may be necessary, since political will is an important element in the successful implementation of a judgment. The raising of public awareness of the judgment and its implications may also be key.
Strategic/Test Litigation - criteria
- Pre-litigation avenues have been considered -and where relevant exhausted
- A clear litigation objective has been identified
- The merits of the case indicate reasonable prospect of success
- The case potentially impacts on a wider class of person
- The facts are not exceptional/ easily distinguishable
- The risk of the government legislating to reverse the victory has been weighed up
- The risk of an unfavourable judgment worsening the position has been weighed up
- The litigant has been made aware of the risks of litigation and is willing to proceed
Useful sources
- “Social inclusion and the legal system - public interest law in Ireland", Whyte G., Institute of Public Administration, 2001 (updated version due 2010).
- “Public Interest Law in Ireland - the reality and the potential" - conference proceedings, FLAC 2006 , www.flac.ie.
- “Pursuing the Public Interest: a handbook for legal professionals and activists", Public Interest Law Institute, edited by Rekosh E., Buchko K., Terzieva V. 2001.
- www.publiclawproject.org.uk