Stormy Daniels does it. She uses digitally based crowdfunding for her trailblazing litigation ‘to speak honestly and openly to the American people about my relationship with now President Donald Trump and the intimidation and tactics used against me’. She is even willing to pay back the $130,000 she was paid for her silence: as at 5 April, she had raised $304,504.
Ms Daniels not only uses a digital platform. She uses a British digital platform: crowd justice.com which is run by Julia Salaksy and owned by a British registered company, The Justice Platform. The site was considered in an early post in 2016 when Ms Salasky reported that the site had raised at that time around £1.5m with average individual contributions of £35. The site now claims to have raised over £5m or $7m.
Ms Daniels is a rather exceptional user. More typical have been cases no less political but more engaged in social justice. There have been five on elements of Brexit – the largest of which has raised over £150,000 ($210,000). Others have involved junior doctors challenging their new contracts and women fighting against pension changes. There have also been a range of other, much smaller, more local – and less British – cases. For example, around $7000 (£5000) has been raised by an interfaith network in the US to support a Guatemalan refugee.
Campaigns have strayed beyond straightforward legal action. Young Legal Aid Lawyers and the Criminal Bar Association raised enough money to send a copy of a book entitled ‘Stories of the Law and How it is broken’ by the intriguingly named Secret Barrister to every MP in a campaign to save criminal legal aid. Fundraising campaigns are understandably attractive to the political causes of the day. Christopher Wylie, who spilled the beans on Cambridge Analytica, is crowdfunding for support for similar whisteblowers.
The economics of the site seem to stack up rather well. You start for free but pay a combined total of around 7 per cent of funds raised to the platform, in tax and payment processing. Should you have any money left over from a campaign then you get the option of keeping it in the system for others or donating it to the Access Justice Foundation which has recently received £25,000.
Historically, one of the barriers to third party funding (beyond those of the time-honoured offences of champerty and maintenance) has been the cost shifting rules that exist in England and Wales but not the US. Lose and you get lumbered with your costs and those of the other side. But there has been, in response, the slow establishment of ‘cost capping orders’ (CCO) where the court agrees a maximum costs order in advance. That frees up the whole third party funding scene because a maximum can be more easily set for financial liability. Understandably, crowdjustice.com has been, backing a case supported by, among others, Professor Stephen Hawking. This recognised that ‘responsible’ individuals might properly bring ‘public spirited cases’ for which they might need a degree of protection. As a result, the judge ‘ordered a CCO limited to £80,000 in respect of each defendant’s costs (i.e., £160,000 in total) and a reciprocal cap of £115,000 in respect of the claimant’s costs. The claimants had raised nearly £265,000 after three rounds of crowdfunding and private donations, so the ruling enabled relatively substantial funds to meet the costs of the claimants’ lawyers.’
So, what crowdjustice.com and its energetic founder Ms Salasky have given us is a real – if rather random – contribution to access to justice. Stormy Daniels appearance among such worthies as the Bexit challengers, Stephen Hawking and Christopher Wylie must have been pretty unexpected. But, particularly for two jurisdictions like the US and England and Wales, where conventional civil legal aid is now hard to get even for cases with a significant public interest, this is a real additional resource – albeit one which could never match universal coverage of an appropriate legal aid scheme. What is more, the model achieves the holy grail of being self-financing, something which is pretty difficult in the social justice field. It also fascinatingly collapses the space between jurisdictions. You can back Stormy in her battle against the President with a simple click wherever you live.