The biggest hurdle for public interest litigants is often the ‘usual order as to costs’ where the losing party foots the other side’s legal bill. The threat of an adverse costs order can stop meritorious public interest matters in their tracks, with many complaints not progressing past the initial client appointment or stalling on the courtroom steps. Legislative measures to encourage public interest litigation such as protective costs orders and broad standing provisions are inadequate, sporadic, limited by jurisdiction and occasionally under threat of being repealed.
This leaves only impecunious or deep-pocketed plaintiffs, who either have little to lose, or can afford to lose a lot, able to take on litigation to effect systemic structural change. In aggregate, the result is that access to justice is restricted for ordinary people, which puts government and corporate actions beyond review of the courts.
The Grata Fund is an innovative response to these issues. Launched in November 2015, Grata is Australia’s first not-for-profit public interest litigation fund, an organisation that exists solely to support high-impact strategic litigation. Named after the first woman to practice law in Australia, Grata is an initiative of grassroots campaigning organisation GetUp, which has a long history of supporting litigation to expand voter rights and protect the environment.
Grata’s mission is to reduce the financial barriers to public interest litigation and enable progressive social change via targeted impact litigation. Fully independent with a hard-hitting board, Grata is gearing up to fund its first case in 2016. And pro bono support is a key part of its model.
It became apparent during Grata’s development stage in consultations with the legal sector that there was a surplus of firms willing to undertake strategic litigation of this kind, but the missing piece was often the financial risk to the client. Grata therefore targets a specific need: protecting public interest plaintiffs against the financial risk of an adverse costs order in the event their case is unsuccessful, as well as some scope for upfront disbursements.
As well as allowing a client to take on important matters, a Grata Fund indemnity can assist firms to advance their strategic pro bono priorities, or facilitate a test case in areas where their regular pro bono casework is revealing systemic trends contributing to disadvantage.
Purposefully lean with one part-time employee and voluntary board, Grata aims to foster collaborative relationships and leverage off the expertise of the public interest sector. An example of this is the Policy Advisory Council, the committee that assesses funding proposals. The PAC consists of strategic litigators, legal academics, social impact campaigners and non-government organisational leaders, including representatives from the Human Rights Law Centre, Public Interest Advocacy Centre, QPILCH, and leading legal academics from ANU and UNSW.
These members bring a wealth of knowledge to the table that goes beyond the legal merits of the case, to the wider consequences of a successful outcome and how to couple a litigation strategy with a broader community campaign for maximum impact.
When a supported case is successful, the plaintiff’s legal representatives will be invited to make a tax-deductible donation of any award of costs in their favour to Grata’s litigation pool, which will then be used to support future cases. This funding model has gained support from both firms and pro bono barristers.
“Many firms feel uncomfortable recovering costs in pro bono matters, because they feel like it goes against the ethos of pro bono work,” says Eliza Ginnivan, the Grata Fund’s executive officer. “Any donations Grata receives will be reinvested in expanding access to justice.” Grata supports the Australian Pro Bono Centre’s call for a voluntary protocol that can be adopted by law firms to guide how costs recovered in public interest cases should be used.
Grata is accepting funding applications from legal representatives for cases in the areas of human rights, economic fairness, environmental justice and democratic participation. Pro bono lawyers with matters that could become high-impact public interest litigation with Grata support should contact Eliza Ginnivan, Executive Officer at email@example.com.