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Litigation needs resources. Anyone bringing a PIL case needs to consider what resources they will need and how they can get them.
Although PIL can be expensive and you may not have plenty of resources, do not let this discourage you. Effective PIL cases can be brought by determined people with no money of their own, but who have raised the money needed for their action.
This section is designed to make you aware of;
Litigation can be a long process. Think about whether you will be able to get enough funds to cover the costs of PIL.
You will need money for the following:
a) As a claimant, bringing a PIL case, you will need money to;
b) In some countries, if you are bringing a criminal case, you have to pay a fee to law enforcement agencies (e.g. police and prosecutors) for them to take your case forward.
Before you approach law enforcement agencies to take your case forward, check if the law requires you to pay. If the law says you don’t have to pay a fee to law enforcement agencies, officers are engaging in corruption and breaking the law by asking you for payment (see “corruption”).
c) To pay your lawyers.
You will most likely need funds to pay for legal representation.
d) To get 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, who will often need paid.
e) To pay “adverse costs orders”.
Sometimes a losing party is required to pay the costs of the winning party.
While litigation can be expensive, there are ways you can reduce the costs needed to bring a PIL case.
Here are some ideas:
a) Bring a class or group action
Class actions are cases brought on behalf of large groups of people. They involve a large number of claimants, so resources can be pooled together and costs can be shared.
In Kenya, a group of 35,000 members of an indigenous community joined together to enforce their land rights in the African Court on Human and People’s Rights.
b) Use the Facilities of Others
Other friendly and community-based organisations, groups or individuals may have equipment you can use, such as computers, phones, cameras, and printers.
c) Use the Web
If you have access to the internet, you may be able to use free (or low-cost) programs to do some of the tasks you would otherwise have to pay for. These include;
d) You May Not Need a Lawyer
You may not need a lawyer at all. In some forums, having a lawyer is not necessary or even allowed;
In Liberia and Sierra Leone, it is common for paralegals to be used instead of lawyers for the majority of legal assistance people need. This has worked to lower costs and increase access to justice.
When bringing a complaint outside a court or in an alternative body, you may not need a lawyer. Examples include;
In court, it is often possible to represent yourself. Although it will be very difficult to win your case without legal representation when the other party has lawyers on its defence team.
e) Get Free Legal Assistance
If you need a lawyer, it may be possible to avoid having to pay for a lawyer.
One of the following options may be able to take your case forward free of charge;
i) Use pro-bono lawyers
Pro-bono lawyers are lawyers who do some of their work for free or low-cost. A lot of law firms take on some “pro-bono work”.
Here is a video about a law firm from the UK who routinely takes cases forward on behalf of people having their rights abused in the developing world.
ii) Lawyers acting on a “no win, no fee” basis
This means that if you lose, you will not have to pay your lawyer. If you win, they will get some of the compensation. Similar schemes such as conditional fee agreements or fee waivers, also exist.
iii) Government funded or other advice centres
iv) Public officials or bodies
Public bodies, such as an Ombudsman or human rights commission, may be able to take your case forward if it raises serious issues within their area of work.
v) Public offices or government departments on a specific issue may take your case if it raises an issue within their area of work
For example, a government agency concerning the environment may take a case involving environmental rights.
vi) International NGOs or national civil society organisations
Some non-profit organisations have legal teams, and may be able to provide legal representation and take your case to court on your behalf.
If you have to pay a lawyer, make sure that you have a clear agreement on the terms on which he or she will represent you, including information on;
Similarly, while it is often necessary to use expert witnesses (and expert evidence preparation can be costly), some experts will provide support for free or at reduced rates for PIL cases.
You may be able to rely on your own resources, and the resources of your community, family and friends.
In some places, foreign funding, whether for litigation or for the organisations supporting it, is prohibited.
But, if local resources are not enough to bring your PIL case, other possible sources of funds include:
See “How Can I Get Support?” for further information on NGOs and civil society organisations.
Managing your finances effectively is essential. This can be vital in keeping costs down and ensuring you can use your resources to bring an effective PIL case.
Managing your money involves;
A group which is thought to have funds may be pressured to spend them on improper purposes (e.g. bribes to corrupt officials or judges, or “protection” money).
Strategies may need to be devised to mitigate this risk.
Be careful who you disclose your financial situation to.