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How can I finance my action?

Litigation needs resources.  Anyone embarking on PIL needs to consider what resources they may need and how to provide them.  But do not let initial lack of resources discourage you unduly.  Some of the most effective Public Interest Litigation (PIL) has been undertaken by determined people with no material resources of their own who have nonetheless raised the necessary support externally to pursue their action.

Two resources in particular are important – people and money. This section deals with money.

1

What do you need money for?

Litigation may be protracted. You should consider whether you will be able to obtain enough funds to cover unavoidable expenses. Bear in mind that a common tactic by more powerful opposing parties is to try to exhaust the resources of claimants.

Consider expenditure for the following purposes:

a) For your expenses as a claimant or group of claimants. You will need to provide for such expenses as

  • travelling to and from meetings and court hearings
  • preparing, printing/copying, and sending documents
  • computers, cameras or phones to collect/record evidence
  • translation of documents from or into a foreign language

b) For your lawyers. You will most likely need funds to pay for legal representation. But you may not; see below point 2(c). Remember that if you win your case, the other side may be able to appeal, and you may need to pay your lawyer during this appeal too.

c) For getting other people involved. You may need other people to support you to prove your case. These may include expert advisers and witnesses such as scientists or economists.

d) For adverse costs orders. Sometimes a losing party is required to pay the costs of the winning party. You need to evaluate the risk of this happening to you, and how you would deal with it. If you as a claimant have no funds, you cannot be forced to pay anything to an opponent. In some jurisdictions, there may be mechanism to protect claimants against exposure to this type of risk, such as Protective Costs Orders.

2

How to minimize costs

Here are some ideas for reducing expenses:

a) Class or group actions involve a large number of claimants and thus, share and reduce risk and costs

b) Resources from allies. Apart from travel expenses, many resources, such as computers, phones, cameras, and printers may already available from allies, such as community-based organizations

c) You may not need a paid lawyer at all. In some places, such as community courts, legal representation is prohibited. It may also be possible to use the services of any of the following instead of a paid lawyer:

  • Pro bono lawyers – lawyers who work for free.
  • Lawyers acting on a “no win, no fee” basis, or similar schemes such as conditional fee agreements or fee waivers
  • Paralegals and community experts (depending on jurisdiction)
  • Governmental or other advice centres – such as law centres, advice centres, university law clinics
  • Public officials such as an Ombudsman
  • Public offices on specific issue – so a “water office” for advice or action on water
  • Students or staff in university law departments or legal/rights institutes
  • In some jurisdictions, you can represent yourself

If you do need a paid lawyer, make sure that you have a clear agreement on the terms on which he or she represents you and will continue to represent you.  Terms could be by a retainer or by hourly rates. Check whether travelling time is chargeable as expenses. When does the lawyer expect to be paid? (Some will agree to delay payment; others may want funds on account in advance or regular payments).

It is often necessary to use senior professionals as expert witnesses, and expert evidence preparation can be costly. But some experts will provide support pro bono or at reduced rates for PIL.

3

How can you obtain financing?

You may be able to rely on your own resources and those of your community and allies. These may be limited, but getting local support for your legal action may not only provide resources but also reinforce commitment to the litigation.

For similar reasons, funding from inside your country is preferable. In some places, foreign funding, whether for litigation or for the organisations supporting it, is prohibited or could bring on other sorts of problems.

Other possible sources of funds are:

  • Other people, organisations, or interest groups sharing the aims or objectives of your claim
  • Non-governmental organisations or civil society organisations
  • Litigation funds (such as Impact Fund: support for litigation for social and economic justice)
  • State funding or legal aid for qualifying cases and claimants
  • Crowd funding or public appeal, for example: Grrowd: justice powered by the crowd
  • It may be possible to borrow money but this carries its own risks.
4

How to manage money

Managing your finances effectively is essential:

  • Keep records, invoices, receipts, and accounts showing what has come in and on what it has been spent.
  • Make this process transparent within your group, for example, by keeping accounts.
  • Also see “How do I manage conflicts in my group?”[*]

A group which is thought to have funds may be pressured to spend them on improper purposes – bribes to corrupt officials or judges, or “protection” money. Strategies may need to be devised to mitigate this risk.

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