Strategic litigation: an outsized impact opportunity for philanthropists  

Author: Alexander Rhodes, Partner, Head of Mishcon Purpose, Mishcon de Reya

View Alexander's biography at the bottom of the page

View the Mishcon de Reya website

In conversations with our philanthropic clients, we find that their concern is increasingly on impact.   

A key concern is how to identify, measure and quantify the outcomes achieved by giving - moving eyes beyond sometimes more obvious markers of output alone.  Another prevailing trend we are seeing is a greater interest in trying to address large-scale, systemic social and environmental challenges.  

In combination, these two factors can be daunting to philanthropists looking to make an impact for the benefit of society.  This can be overwhelming. It can lead to frustration and philanthropic paralysis and - in the worst cases - giving up.  

A question we are asked time and again is "how can I possibly have a meaningful impact on the world's biggest issues when I'm up against global corporations and out-of-reach regulators".  

One answer is to diversify the impact strategies into which you are investing, and consider higher impact higher risk strategies, such as strategic litigation.  

As a private client-centric law firm with a reputation for robust litigation and a history of significant and highly-impactful cases, it has long been clear to us that one of the most powerful ways to drive lasting change is funding strategic, cause-based litigation. We have been heavily investing in this area to enable our clients to drive impact at scale over the last four years.  

Using the law as a tool, litigators can pursue causes which go to the heart of the most important global systemic issues, from climate change, to women's health, to indigenous peoples' rights. Such claims can provide access to justice for the disenfranchised and obtain remedy. More strategically, they can also be used to drive systemic change by helping to develop the law, whether by creating legal risks and/or new legal precedent to incentivise behaviour change.  

Investing in strategic litigation may not be an immediately obvious route to achieving impact. However, it is fast becoming an important tool in the sophisticated philanthropist's tool box. Increasingly donors are allocating a portion of their portfolios to litigation, akin to their high risk, high reward investments.  

Philanthropists interested in strategic litigation are well advised to consider which part of the litigation cycle they wish to fund and whether they wish to do it alone or in partnership with other like-minded philanthropists. In jurisdictions where there is a well-established commercial litigation funding market, such as the UK, philanthropists looking to leverage their funding for impact can perhaps best contribute by addressing the funding gap facing early stage development of litigation cases. This is the development period in which potential claims are identified on a thematic basis and then developed to a point where the significant costs and risks of actually bringing the litigation can be taken on by commercial funders.  

To illustrate the impactful potential of strategic litigation, we need not look far.  

Climate: Verein KlimaSeniorinnen Schweiz and Others v. Switzerland – 9 April 2024 

This case exemplifies the recent surge of innovative climate litigation which looks to hold governments accountable for failure to act on the climate crisis. The claim was brought by a combination of lawyers from Zurich and Lausanne and two King's counsel from London on behalf of four women (over 80 years old) and a Swiss association of roughly 2,000 members, all of whom were senior women. The claimants argued that their health was endangered by the increase in heatwaves caused by climate change and that, in its failure to set climate targets that were in line with the Paris Agreement and best available science, the State of Switzerland had failed to comply with its duties under the European Convention of Human Rights (specifically, the right to life and the right to respect for private and family life and home). The court found (by an overwhelming majority) that the Convention had indeed been breached, stating that Article 8 provided a "right for individuals to enjoy effective protection by the State authorities from serious adverse effects on their life, health, well-being and quality of life arising from the harmful effects and risks caused by climate change", which obliged Switzerland to adopt "measures capable of mitigating the existing and potentially irreversible, future effects of climate change". The impact of this ruling is that the Swiss Government is now obliged to adopt domestic measures that put a stop to its violation of Article 8 and establishes a precedent that European States have a positive obligation to reduce their emissions, in accordance with their Paris Agreement commitment.  

Public policy: R (on behalf of Miller) v The Prime Minister – 24 September 2019 

In 2019, Mishcon was instructed by Gina Miller. This case demonstrates the real-world influence that strategic litigation can have on public policy. The case centred around the then Prime Minister's (Boris Johnson's) advice to the Queen to prorogue Parliament in the period shortly before the UK's withdrawal from the EU. The effect of proroguing Parliament is to immediately suspend parliamentary business which would have included matters surrounding the UK's EU withdrawal, effectively leaving the Government potentially unaccountable for action taken within this period. The court ultimately found that the prorogation was exceptional and unjustified and that Prime Minister's action had the effect of frustrating Parliament's role in holding the Government to account. The Prime Minister's advice was thereafter deemed null and void and Parliament had not been prorogued. Without this piece of strategic litigation, it is possible that Parliament would not have had the same opportunity to perform its constitutional function in a time of political sensitivity. 

Pollution: Proposed claim for judicial review by Clear the Air in Havering and Ruth Kettle-Frisby – proposed claim 

Most recently, Mishcon has been engaged by a local activist organisation focussed on addressing air pollution, particularly in the interests of children's health. This case centres around a "toxic" landfill site in Rainham ("Launder's Lane") which has been left to stew for decades. The site spontaneously combusts with alarming regularity and has led to spikes in levels of air pollutants in the local area, such as PM2.5 and methane. Methane is a potent climate pollutant (ca. 80 times more potent than CO2), whilst exposure to PM2.5 has been linked to adverse health conditions (such as cancer, heart and lung disease, as well as strokes). The site is so toxic and volatile that it is too dangerous for the London Fire Brigade to enter the site, instead having to fight the fires as best they can from the surrounding roads. Despite this, Havering Council have decided not to designate the site as "contaminated land". 

To stop the fires, expedite clean-up of the site, and obtain compensation for those who have suffered harm, Mishcon has initiated its strategic litigation plan. On 10 September 2024, we commenced this by sending a Letter Before Action to Havering Council, to explain our proposed claim for judicial review of their decision not to designate the site as contaminated land. The claim aims to deliver results for the local people who have long suffered on account of the authorities' inaction. 

As we look to the future, it is clear that strategic litigation will continue to be an important tool for those committed to driving social and environmental change. By combining their resources, resolve, and readiness to engage with the legal system, philanthropists can continue to contribute to the betterment of society and the health of the planet in a manner that is both innovative and influential. The cases mentioned here are but a few examples of how strategic litigation can not only address immediate injustices, but also generate future systemic change, set legal precedent and yield outsized impact. 

Biography

Alexander is a Partner and Head of Mishcon Purpose.

He provides strategic Environmental, Social and Governance (ESG) advice and purpose-driven insight to help clients navigate the opportunities and risks presented by a rapidly changing world. 

Alexander is a trusted advisor to typically international clients, with more than 15 years legal and global consultancy experience. He acts for families in relation to their personal, business and philanthropic interests; businesses seeking transition to more sustainable and resilient ways of working. He is privileged to have worked closely with governments and global leaders in their efforts to achieve the Sustainable Development Goals.

A seasoned litigator, he has particular expertise in the resolution of complex multi-jurisdictional disputes, usually with reputational aspects, and public affairs. As a trustee and advisor, Alexander's long-term preoccupation has been balancing the imperatives of environmental conservation and human development.

He was the founding CEO of the charity Stop Ivory; head of the Secretariat to the inter-governmental Elephant Protection Initiative; and is a Chairman of Tusk Trust. 

He is a Fellow of the Royal Geographic Society and a Conservation Fellow of the Zoological Society of London (ZSL). In 2018 the ZSL named him its Conservationist of the Year in recognition of his work supporting African governments in combatting the illegal ivory trade and in elephant conservation.

Alexander sits on the advisory board of the Athens Democracy Forum.