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Notes
1 The origins of this practice within the work of campaigning organisations and the scholarly literature are traced in: Michael Ramsden and Kris Gledhill, ‘Defining Strategic Litigation’ (2019) 4 Civil Justice Quarterly 407; Kris Van Der Pas, ‘Conceptualising Strategic Litigation’ (2021) 6 Onati Socio Legal Series 116.
2 Henry Mintzberg, ‘The Strategy Concept I: Five Ps for Strategy’ (1987) 30(1) California Management Review 11, 12.
3 Michael Ramsden, ‘Strategic Litigation Before the International Court of Justice: Evaluating Impact in the Campaign for Rohingya Rights’ (2022) 33(2) European Journal of International Law 441, 442. See also Frederick Powell, ‘Structural Procedural Review: An Emerging Trend in Public Law’ [2017] JR 83 (noting a readiness on the part of the court to find structural violations in the context of the procedural fairness ground of review).
4 Ramsden and Gledhill (n 1) 416.
5 ibid. See also David Welsh, ‘Judicial Review: Questions of Jurisdiction and Appropriate Forum’ [2022] JR 187.
6 ibid 425–426.
7 ibid 418–424.
8 Carol Harlow and Richard Rawlings, Pressure Through Law (Routledge 1992) 12.
9 Ramsden and Gledhill (n 1) 418–424.
10 Van Der Pas (n 1) 127–129.
11 ibid.
12 See eg Christopher McCorkindale and Aileen McHarg, ‘Litigating Brexit’ in Oran Doyle, Aileen McHarg and Jo Murkens (eds), The Brexit Challenge for Ireland and the United Kingdom (Cambridge University Press 2021) 260 (noting their preferred use of the term strategic litigation over public interest litigation as ‘more encompassing' of the Brexit litigation); Van Der Pas (n 1) 127–129; In the matter of an application by the Northern Ireland Human Rights Commission for Judicial Review (Northern Ireland) Reference by the Court of Appeal in Northern Ireland pursuant to Paragraph 33 of Schedule 10 to the Northern Ireland Act 1998 (Abortion) (Northern Ireland) [2018] UKSC 27.
13 See eg Melinda Rucz, ‘SLAPPed by the GDPR: Protecting Public Interest Journalism in the Face of GDPR-Based Strategic Litigation against Public Participation’ (2022) 14 Journal of Media Law 378.
14 Ramsden and Gledhill (n 1) 422.
15 ibid.
16 McCorkindale and McHarg (n 12) 279.
17 ibid.
18 R (Detention Action and Mikhail Ravin) v Secretary of State for the Home Department [2020] EWHC 732 (Admin) [1] (emphasis added).
19 See eg R (SC, CB and 8 children) v Secretary of State for Work and Pensions and others (Respondents) [2021] UKSC 26, [2022] AC 223 [50] (Lord Reed).
20 ibid.
21 ibid [162].
22 Ramsden and Gledhill (n 1) 425.
23 See eg Manoj Dias-Abey, ‘Bridging the Spaces in-between? The IWGB and Strategic Litigation’ in Steve Boutcher, Corey Shdaimah and Michael Yarbrough (eds), Handbook on Law, Social Movements and Social Change (Edward Elgar 2023).
24 McCorkindale and McHarg (n 12) 279–284.
25 This reflects more generally a tendency in the judicial review scholarship to focus on common law doctrine: Joanna Bell, ‘Significant Academic Articles in 2020: Five Contributions to Understanding and the Growing Plea for More Imaginative Study of Judicial Review’ [2021] JR 68.
26 The extensive involvement of campaigning organisations in strategic litigation is discussed generally in Ramsden and Gledhill (n 1); Tawanda Hondora, ‘Civil Society Organisations’ Role in the Development of International Law through Strategic Litigation in Challenging Times’ (2018) 25 Australian Journal of International Law 115; Alessio Bertolini and Ruth Dukes, ‘Trade Unions and Platform Workers in the UK: Worker Representation in the Shadow of the Law’ 50(4) (2021) Industrial Law Journal 662; Jacob Smith, ‘Hurdles, Hurdles, and More Hurdles: Strategic Litigation in National Security Cases’ (2023) 19(4) Journal of Civil Society 366.
27 See eg A Local Authority v JB [2021] UKSC 52, [2022] AC 1322 [8] (Lord Stephens).
28 See eg Filiz Kahraman, ‘What Makes an International Institution Work for Labor Activists? Shaping International Law through Strategic Litigation’ (2023) 57(1) Law & Society Review 61.
29 For a study on this practice, see: Maurice Sunkin and Vara Bondy, ‘Settlement in Judicial Review proceedings’ (2009) Public Law 237.
30 R (Refugee Legal Centre) v Secretary of State for the Home Department [2004] EWCA Civ 1481, [2005] 1 WLR 2219 [5] (Sedley LJ) (emphasis added).
31 See R (A and others) v East Sussex CC [2002] EWHC 2771 (Admin), [2003] LGR 529; Reference by the Court of Appeal in Northern Ireland (n 12).
32 To borrow Lloyds LJ’s famous phrase in R v Foreign Secretary ex p Rees-Mogg [1994] QB 552, 562.
33 Mathieson, a deceased child (by his father Craig Mathieson) v Secretary of State for Work and Pensions [2015] UKSC 47, [2015] 1 WLR 3250 [49].
34 See eg R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5, [2018] AC 61.
35 For a recent study of 413 crowdfunding strategic litigations, see: Sam Guy, ‘Mobilising the Market: An Empirical Analysis of Crowdfunding for Judicial Review Litigation’ (2023) 86(2) Modern Law Review 331.
36 See Ramsden and Gledhill (n 1) 412 (and citations there). See also the use of crowdfunding for a strategic litigation into the question of a Scottish referendum on independence, discussed in Juliette Ringeisen Biardeaud, ‘The Continuation of Politics in the Courtroom: Scotland and Strategic Litigation’ (2022) (XXVII-2) Revue Française de Civilisation Britannique 1, 6.
37 Open Society Justice Initiative, ‘Strategic Litigation Impacts: Roma School Desegregation’ (March 2016) 10 <https://www.justiceinitiative.org/publications/strategic-litigation-impacts-roma-school-desegregation> accessed 16 October 2023.
38 Open Society Justice Initiative, ‘Strategic Litigation Impacts: Equal Access to Quality Education’ ’ (March 2017) 13 <https://www.justiceinitiative.org/publications/strategic-litigation-impacts-equal-access-quality-education> accessed 16 October 2023.
39 See also Hondora (n 26).
40 See e.g. Fratila v Secretary of State for Work and Pensions [2021] UKSC 53, [2022] PTSR 448 (respondent Romanian nationals supported by Child Poverty Action Group who instructed counsel).
41 See e.g. JB (n 27).
42 See e.g. SC (n 19) [11]–[12] (noting that the Child Poverty Action Group, intervening in the case, also previously opposed the passage of the challenged legislation in Parliament, with individual benefit claimant parties to the case also showing how the cap impacted upon them).
43 See eg JB (n 27) [6]–[8] (Lord Sumption).
44 A wide range of these reports are discussed and referenced in Ramsden and Gledhill (n 1).
45 Helen Duffy, Strategic Human Rights Litigation: Understanding and Maximising Impact (Hart 2018) 50–80; Alice Donald and Elizabeth Mottershaw, ‘Evaluating the Impact of Human Rights Litigation on Policy and Practice: A Case Study of the UK’ (2009) 1(3) Journal of Human Rights Practice 339; McCorkindale and McHarg (n 12),
46 See eg Ramsden and Gledhill, (n 1) (reports cited there); Open Society Initiative, ‘Roma School Desegregation’ (n 37) 11 (particularly the report’s co-sponsors who engage in strategic litigations).
47 ibid (acknowledging possible perception that some might reason that the study is ‘inherently biased towards conclusions favourable to the sponsors’ mission' before then explaining measures taken to mitigate this bias, including an independent panel of researchers); Andreas Fischer-Lescano, ‘From Strategic Litigation to Juridical Action’ in M. Saage-Maaß et al. (eds), Transnational Legal Activism in Global Value Chains (Springer 2021) 299, 300.
48 See eg Lisa Vanhala, ‘Successful Use of Strategic Litigation by the Voluntary Sector on Issues Related to Discrimination and Disadvantage: Key Cases from the UK’ (Baring Foundation 2017) 6 <https://cdn.baringfoundation.org.uk/wp-content/uploads/Working-paper-3_Strategic-Litigation_final.pdf> accessed 16 October 2023.
49 ibid 6.
50 Duffy (n 45).
51 McCorkindale and McHarg (n 12); Alice Donald et al, ‘Evaluating the Impact of Selected Cases under the Human Rights Act on Public Services Provision’, Equality and Human Rights Commission (Manchester 2009).
52 See Varda Bondy, Lucinda Platt and Maurice Sunkin, ‘The Value and Effects of Judicial Review: The Nature of Claims, their Outcomes and Consequences’, Public Law Project (2015) <https://www.nuffieldfoundation.org/wp-content/uploads/2019/11/Value-and-Effects-of-Judicial-Review.pdf> accessed 16 October 2023.
53 See eg Vanhala (n 48).
54 Andrew Tickell, ‘Gender Critical Litigation: Reconciling Fair Play for Women and For Women Scotland’ 26(3) (2022) Edinburgh Law Review 458, 466–467; Duffy (n 45) 77–78; Donald (n 51) 15–17.
55 UK Government, ‘Independent Review of Administrative Law’ <https://www.gov.uk/government/groups/independent-review-of-administrative-law> accessed 16 October 2023 (noting that the review was established in part to ensure that judicial review was ‘not abused to conduct politics by another means or to create needless delays'). See also McCorkindale and McHarg (n 12), 281–282 (referencing Lord Hope’s warning that strategic litigation be used responsibly to avoid political backlash); Joe Tomlinson, ‘Crowdfunding Public Interest Judicial Reviews: A Risky New Resource and the Case for a Practical Ethics’ (2019) Public Law 166, 185.
56 Donald (n 51) 104.