Legal Action for Social Justice

A key form of legal action is litigation. Litigation is the process of bringing an action in court to enforce a law or a right. For example:

• If you have suffered harm, you may ask a court to order that compensation be paid.
• If you want to stop another person doing something that harms you, you may ask the court to order the other person to stop that activity

When litigation is taken in to protect human rights, the environment or another good cause, it can be called “public interest litigation”. For example, public interest litigation could ask the court to:

• Improve the human rights situation where you live.
• Advance women’s rights.
• Promote equality rights/prevent discrimination.
• Ensure the public has access to information and can express its opinions.
• Protect the environment.

The person who starts the litigation (the Claimant) will ask the court for a particular solution to his/her problem. This is called the ‘remedy’.

The remedy requested will vary from case to case and from court to court. For example, you might ask a court:

• To order someone to stop polluting a river;
• To declare that someone has a right to attend a school; or
• To provide compensation for harm you have suffered.

If you win your case, the court could decide:

• To grant the remedy you requested; or
• To grant a remedy different to the one you requested but which it believes is correct and just.

For further information, see “What Remedies Are Available?”

What you need to do to take successful legal action will depend on:

• The legal system in your country;
• The law or laws your case is based on;
• The court you are bringing your case to; and
• The facts of your case.

But there are some general requirements that apply to most countries.

This Guide will give you tips and guidance on how you met these requirements in your case.

Access to justice is the ability for people to enforce their rights and seek a remedy through legal action in practice. This relates to the legal and practical ability of someone to take legal action.

Although there is a law you think has been broken and you have a legal right to bring a case to court, there can also be practical barriers outside the law that could make bringing legal action difficult, impossible or dangerous. Examples of practical barriers to access justice include:

• Not having legal support to take your case to court. For example, you may not be able to get assistance from a lawyer or an organisation that can help;
• Not being able to finance your action. Legal action can be expensive. This can prevent a lot of people from going to court; and
• Threats to your security from the defendant or other people or groups who don’t want you to enforce your rights.

These issues can impact your access to justice. Before taking legal action, it’s important to think about what issues may impact access to justice in your case. Later in the Guide, there will be some tips and guidance on different practical ways to overcome these practical barriers to access justice.

Legal action is broader than just litigation. There are different ways that the law can be used to protect your rights and the environment. For example:

• You could negotiate with the other side before taking a case or while you are taking a case in order to reach a settlement. A good understanding of the law and the possibility to take litigation is often key to strengthening your negotiating position;
• You could take a non-judicial complaint, to a body outside of court. This could be a complaint to a police ombudsman or an internal grievance procedure in a multinational corporation. While these are not examples of litigation, a good understanding of the law will strengthen your complaint and you may use court as a backup if you are not happy with the outcome of a complaint;
• You could take a complaint to an international accountability mechanism, such as a regional human rights court, OECD national contact point or United Nations human rights body; or
• You could use a campaign or other advocacy to raise awareness about an issue.

Later in this Guide, more information will be provided on some of these alternatives. The key thing to know for now is that litigation is not the only way you can enforce your rights.

Before taking a case to court, it’s important to think through what your options are and decide if litigation is right for you.