On Thursday morning, on the steps of the Royal Courts of Justice, a gaggle of camera-people waited for Gina Miller. Miller, the businesswoman and pro-Remain activist, had brought a legal challenge against prime minister Boris Johnson’s attempt to prorogue Parliament, and was due to appear at the RCJ that morning. Word spread that Miller was coming in through a back entrance – much to the chagrin of the camera-people, who started to disperse.
Inside Court Four, Miller’s representative, Lord David Pannick QC, emphasised that “this court is not concerned with political issues”. Instead, the case against prorogation was laid out in three parts) – one: that prorogation has never been longer than three weeks for the last 40 years; two: that the prime minister’s advice to the Queen was an “abuse of power”; and three: that the breach of parliamentary sovereignty is happening during a period where “time is very much of the essence”, that is, ahead of the Brexit deadline on October 31.
The case had started on the previous Friday, with Miller’s launch of a crowdfunding page titled “Gina Miller's Legal Battle to stop Johnson Proroguing Parliament”. Miller is no stranger to crowdfunding: her initial claim to nation-wide fame was her 2017 legal challenge aimed at stopping the government from triggering the Article 50 process (through which the UK would leave the EU) without a vote in parliament. She was one of several claimants in the High Court Case, alongside a group called the People's Challenge to Article 50, which was backed by a crowdfunding campaign. That legal challenge was eventually successful. The group, the People's Challenge to Article 50, subsequently raised over £75,000 in 24 hours in order to defend the ruling before the Supreme Court.
But this Friday Miller was out of luck: the three presiding judges swiftly dismissed her claim that the prorogation was unlawful. Miller was given permission to appeal to the Supreme Court; the title of her crowdfunding page was immediately changed to “Gina Miller's Supreme Court battle against Boris Johnson”.
Crowdfunding is commonplace on the internet – it’s so quotidian it’s almost unremarkable. Social media has made it easier to raise money, with a whole ecosystem of crowdfunding websites – Gofundme, Kickstarter, Chuffed – cropping up for every conceivable want or need.
But crowdfunding for legal proceedings – whether for individual cases or high-profile legal challenges – has risen in recent years. Brexit, in particular, has led to a series of high-profile court cases, many of which crowdfunded.
Elizabeth Webster, a lawyer, launched a crowdfunder for £200,000, challenging Article 50, which was thrown out by judges in June 2018. The private prosecutor Marcus J Ball crowdfunded a legal challenge against Boris Johnson to the tune of £145,000 in a month, over what he called misconduct in public office for telling “demonstrable falsehoods during the EU referendum campaign, although this was also dismissed. Shahmir Sanni, a former staffer of the pro-Brexit campaign Vote Leave, is currently crowdfunding a legal challenge against both his former employer, the TaxPayers’ Alliance, and the prime minister’s office, accusing them of unfair retaliation for speaking out about how Vote Leave may have broken the law ahead of the referendum. At the other end of the political spectrum, Darren Grimes, a pro-Brexit activist fined by the Electoral Commission for exceeding campaign spending limits, turned to crowdfunding to finance his – successful – appeal against the judgement.
“One of the things that researchers don’t have yet is loads of clear data on crowdfunding,” says Joseph Tomlinson, a professor of law at the University of York. “But it’s quite clear that there’s been a spike in activity.” This is likely due to a variety of reasons. One is that social networks have allowed crowdfunding campaigns with broad appeal – Brexit-related ones are textbook cases – to quickly reach many potential backers, especially if they are promoted by someone with a big online following.
Funding for legal aid – through which people can receive help for costly litigation – was slashed significantly in 2012, reducing the chances that the average person would be able to take on a costly case against the government. It is therefore unsurprising that crowdfunding started to appear as a viable solution, chiefly for cases of national significance, but also, to an extent, for routine cases, such as housing claims.
“What people have done traditionally is seek legal aid to cover their costs,” says Tomlinson. “The pipeline from the person to the court is far more difficult now.” The structure of the UK’s legal system has made crowdfunding simultaneously more difficult and crucial for public interest litigation. Bringing a judicial review – a case against the government – to court is financially very risky. Losing means that you’ll have to pay back the other side’s legal costs besides your own, and if the other side are powerful politicians, the legal bills are guaranteed to be humongous.
“Bringing an application for judicial review can be very expensive,” says Suzanne Chiodo, a stipendiary lecturer in law at the University of Oxford. “For a complex, two-day matter, costs can run from £80,000 to £200,000, not including the other side’s costs if you lose.” It’s often tricky to try and estimate those costs in advance – so even if you are able to crowdfund money for your case, it could end up being too much or too little. Accurately estimating the overall cost beforehand will require legal advice, which is also expensive.
High-profile cases, like the ones that challenge the government in the run-up to Brexit, receive more media attention, and are often funded more quickly. “Brexit affects everybody, and people feel politically disempowered,” says John Halford, a partner at legal firm Bindmans, who has worked on several Brexit-related crowdfunded cases. “None of these cases would have happened without crowdfunding.”
According to Jolyon Maugham QC, a barrister who founded the Good Law Project and has crowdfunded court cases against the government and against Uber, much of the success of the anti-Brexit crowdfunders can be chalked up to “a sense of people’s helplessness.”
“There are cases around civil liberties and other policy issues which struggle to receive funding, even when they’re backed by high-quality legal teams, raising issues that most of us would regard as important,” Maugham says. “But there is something about Brexit which people are particularly anxious about.”
Of course, none of this would have happened without technology. The thing that more than anything else contributed to the rise of crowdfunded legal proceedings is a company called Crowdjustice. Founded by former litigator Julia Salasky, and based in London, since its launch in 2014 CrowdJustice has helped raise over £10 million for legal proceedings, making more than 1,000 cases possible.
“[These proceedings] range from localised cases, such as when individuals face deportation and need immigration advice, to topical national issues – like a defense fund for those arrested during the Extinction Rebellion protests,” says Salasky. Crowdjustice is also the fundraising platform for many of the legal challenges to Brexit, and six of the cases that have been funded on Crowdjustice have reached the Supreme Court.
Where CrowdJustice may differ from other crowdfunding sites is that it’s built by lawyers. “We independently verify that every person raising funds on CrowdJustice has instructed a regulated lawyer or non-profit. We do robust compliance on all funds raised, and funds raised go directly to the lawyer’s client account,” says Salasky. Salasky explains that donors often end up funding multiple cases on Crowdjustice, even if they aren’t all successful.
“We knew from the start that crowdfunding was the way forward, because we wouldn’t be able to get money from public services – there were too many conflicts of interest when it came to Brexit, so it did have to be privately funded,” says Marcus J Ball, the private prosecutor who since 2016 has crowdfunded over £430,000 for his case against Boris Johnson. “It’s almost a beautiful thing,” he adds. “It’s just normal people, with this wonderful combination of democracy, and technology, and strong values, coming together to solve a problem.”
“What the crowdfunding element brings in is that it makes people participants in that process. They kind of become part of the case even if they’re technically not,” says Tomlinson. Those who are asking for donations often update their crowdfunder pages with news on the progress of the case, whether positive or negative. People might feel that donating to a court case – something with legal experts involved, and the potential for a concrete outcome that benefits them – is the best way to use their disposable income, as opposed to donating to a smaller charity or a local group.
A certain level of skepticism around crowdfunding for legal proceedings still exists, potentially due to high-profile, crowdfunded cases that didn’t get very far. “Well publicised cases may attract funding even though they are unlikely to succeed – [Elizabeth Webster’s] case attracted £190,000 in crowdfunding even though the court found it to be totally without merit,” says Chiodo. “Funding litigation is not like donating to hurricane relief efforts: you could donate to the litigation of a cause you believe in, and that litigation may be unsuccessful, in which case the money goes down the drain. It is usually a zero-sum game.” Other crowdfunded cases, such as Ball vs Johnson, and of course Miller’s latest challenge, also lost their first legal proceedings, although both could still be fought before the Supreme Court.
“For cases outside of the Brexit sphere, it can be very difficult to crowdfund.” says Maugham. “Crowdfunding is not a panacea for cuts in legal aid. I worry that the government, and judges, are failing to recognise that it’s actually difficult for many people to do so.”
Other experts worry that crowdfunding might increase the noise around courts and judicial proceedings, enabling spurious cases, or legal challenges with a flimsy backing, to take up administrative resources simply because the funds now exist to bring it to court.
In reality, there are still checks in place – if you bring a claim against the government, for instance, there’s a permission stage. “If a case is not of sufficient quality, the court will push it out. I’ve never heard anyone say, ‘Oh, but this is being crowdfunded’. Often, it’s not pertinent to what’s going on,” says Tomlinson. “Despite all of the different elements – the noise of the crowd, the political aspect – there has to be legal points.”
As of yet, crowdfunding for legal proceedings is still a relatively new frontier. But the runaway success of massive crowdfunding drives indicates that the method fills a political participation gap, a desire from individuals to act on something that affects them – if only through judicial means. “Crowdfunding may also provide a psychological benefit,” says Chiodo. “Even if the case loses, you feel like you’ve done something just by donating.”
Updated September 7, 2019 14:18BST: The first crowdfunded legal campaign Gina Miller was involved in was alongside People's Challenge to Article 50
This article was originally published by WIRED UK
