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Legal Action for Social Justice

Legal action for social justice means action that uses law to protect human rights, the environment and other public interests. The Going to Court: Q & A is designed to give you tips and guidance on how you can do just that.

The Going to Court: Q & A provides an introduction into legal action and takes you through a series of key questions that you will need to ask yourself if you want to take successful legal action in court.

  • This includes key legal and practical issues that you have to think about before deciding to go to court.

But this is not a substitute for legal advice.

  • This Guide is general in scope. It looks at examples of laws and cases in different countries, outlines legal developments, and provides general tips on legal strategy.
  • To bring a case, you have to know the law and legal system in your country.

If, after reading the Guide, you want to explore the possibility of taking climate litigation further, seek a lawyer or an organisation that could help you develop your case.

1

What Is Litigation?

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.
2

What Are the Key Features of Litigation?

Key Features of Litigation

  • 1

    There are at least two sides or "parties" to any ligitation

    The “Claimant“ or "Plaintiff" is the party that brings the claim. The “Defendant“ is the party which is defending the legal claim.

  • 2

    Both parties use arguments based in law

    The Claimant will argue the Defendant has committed a legal wrong The Defendant will argue that they have not committed a legal wrong

  • 3

    The parties have evidence to support their version of events

    The evidence supports the legal argument and is used to persuade the court that their complaint or defence is correct

  • 4

    The case or claim is heard in court

    A court is a formal body that can decide legal disputes. This can be a regional, national, or an international court, or a tribunal or another type of less formal dispute settlement body.

  • 5

    The court makes a decision

    The court will consider the arguments and decide which side it believes is correct under the law. It will then make a decision or judgment.

  • 6

    The may be an appeal

    After first hearing (the first time the court heard the case) the decision can generally be appealed in a higher court.

  • 7

    Enforcing a judgment

    After any appeals have been decided, the successful Claimant will then seek to enforce this judgment against the other side.

3

What Can Litigation Achieve?

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?

4

How Can You Take Litigation?

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.

 

General Requirements to Take Successful Legal Action

  1. There has to be a relevant law that relates to the facts of your case and you can argue has been broken

  2. You must have the right to take legal action

  3. There must be an appropriate defendant for you to take legal action against

  4. You must have evidence to prove your case (i.e. evidence that supports your legal argument)

  5. There must be an appropriate court where you can take your case

  6. You must follow the procedure of the court that is hearing your case

  7. You must define the remedy you want if you win

  8. If you win, you must ensure that the decision is enforced

 

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

5

What Is Access to Justice?

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.

6

What Alternatives Are There to Going to Court?

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.

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Action4Justice is a group of NGO’s united to support public interest litigation worldwide as a means to advance social justice.

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