Crowdfunding, justice and technology

Crowdfunding of legal cases provides a good example of a development which, at least in England and Wales, is coming of age and which is practically – but not inherently – dependent on the internet. After all, its precursors in the form of champerty and maintenance were identified in mediaeval times and, indeed, banned as criminal and unlawful. However, a recent seminar organised by the London chambers, One Crown Office Row or 1COR, is a sign of crowdfunding’s increasing importance as a source of funding in judicial review cases. 1COR’s identity is important. This is no group of rebellious lefty lawyers hanging around on the margins of the Bar: this is a set of chambers right at its beating blue heart, replete with the well born and distinguished.

The prime crowdfunding site in England and Wales is whose CEO, Julia Salasky participated in the seminar. Other sites in the same territory are and Ms Salasky reported that her operation had raised around £1.5m with average individual contributions of £35. It has supported around 85 cases since its launch last year. Many of these were relatively small but among the major challenges funded through open subscription are the case taken by junior doctors against changes to their contracts, an attempt to mitigate the effect of the Brexit referendum and a case against a rail company’s alleged incompetence. Crowdfunding is a logical, and perhaps predictable response, to restrictions on the availability of legal aid.

The new elements introduced by technology are the ability for rapid dissemination of publicity – often assisted by social media campaigns – combined with the easy ability to aggregate small donations. Also relevant are regulatory changes, introduced to facilitate the introduction of conditional fee agreements when legal aid was abolished for personal injury cases, which consigned the barriers of champerty and maintenance to history. A further factor is the very existence of crowdfunding sites with their drive for business and growing expertise in the field. The recent growth of administrative law challenges, accelerated by the Human Rights Act, has created a background expectation of a wider range of judicial challenge with an accompanying penumbra of lawyers experienced in the field. A government whose core identity has been hung on making cuts to the finances and reach of public benefits and institutions has offered itself as a tempting target.

Perhaps understandably, the government is no fan of litigation, particularly when it finds itself as its object.  So, a game of cat and mouse continues. Legal aid has been progressively withdrawn – with two consequences. First, a source of funding is lost. But, secondly, protection against an order for costs in the event of defeat is removed – something which does not apply in jurisdictions such as that of the USA to the same extent but which can prove to be a more formidable obstacle to litigation because of the exposure of indiviual litigants to unquantifiable and sometimes very large costs. This has been followed by legislation tightening the circumstances in which a court may limit in advance the maximum adverse cost order that it might make – an initial way in the courts sought to give sustenance to non-legally aided litigation in fields where the judiciary thought that the case was worthy of their consideration. The government fought back with provisions in the Criminal Justice and Courts Act 2015 which restricted the terms on what is now called a costs capping order may be granted (ss88-90).

If crowdfunding proves too successful, we can predict more legislative intervention as the government seeks further to limit the scope for challenge. However, the emergence of large private litigation Funders, operating on a commercial basis and effectively as part of the betting industry, should provide some degree of wider institutional protection. In the meantime, crowdfunding seems likely to thrive and to provide a democratised element to legal challenge which may embed it more firmly within the tools available to the lobbyist, critic and campaigner. It will be very much buttressed by modern ways of using social media. No wonder 1COR, which may be respectable but is not stuffy, is interested. And the crowdfunding movement provides a very good example of how technology rarely operates in a vacuum. Its impact in the legal sphere,  as in others, comes in tandem with other political, social and economic forces.

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