Is crowdfunding the new way of financing judicial reviews?
Following radical cuts to legal aid, Isabel McArdle and Michael Deacon consider how solicitors can assist clients hoping to raise the funds necessary for a judicial review claim
There is no question that the loss of legal aid to much of public law has been a major blow to the availability of legal advice and representation for judicial review claimants. With ATE insurance rarely available and CFAs difficult to justify in much of judicial review, it is increasingly becoming the territory of corporations, NGOs, and wealthier individuals.
But there may be hope for ordinary members of the public: crowdfunding might just prove to be the key to unlocking judicial review for the masses.
There have been some early success stories in raising the funds necessary to make a JR viable. Notably, the Justice for Health campaign, in support of a small group of doctors who challenged the health secretary’s decision to impose contractual terms on junior doctors, raised sufficient funds through crowdfunded donations to bring their claim. A campaign to challenge, among other things, the decision to trigger the article 50 process without a parliamentary vote has attracted crowdfunding after much publicity.
But these are causes attracting national media attention, with huge public interest, and quite possibly with the benefit of significant PR assistance. They are far removed from the run-of-the-mill judicial review claims, however deserving, that are the bread and butter of most public law practitioners.
If public lawyers want to keep their judicial review practices buoyant, and help claimants in dire need of legal assistance, the way forward may be to become crowdfunding savvy. While some cases sing out for crowdfunding (i.e. those which are already big stories), there are cases where giving the potential claimant a steer in the right direction toward crowdfunding may make all the difference between viability and non-viability.
Consider cases where the potential claimant is part of a tight-knit community, likely to engender loyalty, and with an obviously sympathetic cause. Are they willing to talk to the media? Do they listen to advice on what not to say? If so, crowdfunding may be for them.
How solicitors can help
Solicitors are not PR companies; they cannot run the campaign for the client. But they can offer meaningful assistance to clients who might otherwise never think to crowdfund, let alone succeed. Here’s what your client needs to know:
What funding they need to raise for a viable claim. This includes not only the funding model you can offer them, but the risk of adverse costs, disbursement costs, and so forth;
What the limitation position is. Raising funds always takes time, and with judicial review’s tight timescale it is especially important for crowdfunders to move quickly;
What to say about the potential claim. This includes not only explaining why it matters to them, how to donate, and what they hope to achieve, but crucially what not to say: think defamation and prejudicial comments;
Where to begin. Pointing them in the direction of crowdfunding websites, social media, and any local or national media contacts you might have can be a huge help; and
Whether you can give them publicity. Would their case be featured on your firm’s website or Twitter feed?
There is clearly a niche in the market for firms willing to put in a bit of effort to help clients crowdfund. Larger firms with marketing departments should be considering how to provide detailed information to potential claimants to get their funding off the ground.
For smaller operations, a simple fact sheet which can be given to all clients, setting out the basics of crowdfunding, may be all that is needed to give them the confidence to get started. While the driving force behind generating publicity must ultimately come from the client, an introduction to the basics and a bit of encouragement can go a long way.
Isabel McArdle, pictured, and Michael Deacon are barristers at One Crown Office Row Chambers