Legal look at crowdfunding
LITIGATION is a costly business, which is why so many people are turning to crowdfunding to help them foot the bill.
Yet while certain campaigns have proved popular with donors keen to support a cause – or a person – they believe in, professional ethics professor Richard Moorhead pointed out that such fundraisers can create an issue for the lawyers who will ultimately be paid from those funds.
“There’s an obvious risk around how you ensure that the funders properly understand the merits of the claim and who the instructing clients are,” he said.
Jonathan Mitchell QC agreed. In 2015 he represented four Orkney residents who raised over £200,000 on the Indiegogo crowdfunding site to bring a case against their MP, Alistair Carmichael, with the ultimate aim of ousting him from his position.
Though the group would never have been able to fund the case without the backing they received from over 10,000 individuals, Mr Mitchell said he and his instructing solicitors at Balfour & Manson had to think long and hard before deciding to go down that route.
“This was the first crowdfunded litigation in Scotland and because it was new to all of us we agonised about the ethical issues,” he explained. “We thought we had to get out into the public domain as much information as we could about the strengths of the case and also the limitations.
“We put out things like the petition and notes on the legal argument, and at one stage we made an application for the court to order that both sides do that. We even pushed for the case to be televised.”
The Good Law Project, which has crowdfunded numerous cases, including one on the revocation of Article 50 that was heard in the Court of Session and went all the way to the Court of Justice of the European Union, takes a similar stance.
As it exists to bring cases designed to clarify the law on issues including Brexit and workers’ rights – and as it is funded by its members – both its own website and the Crowdjustice pages supporting its various crowdfunding campaigns are heavily populated with details relating to those cases.
Not everyone has been so forthcoming. Mark Meechan, who raised close to £200,000 to fight what has become known as the Nazi pug freedom of expression case, has posted very little information on his Gofundme page despite some significant recent developments in the case and despite him making a promise to supporters that he would be “100% transparent” about his legal bills.
Mr Meechan’s lawyer Ross Brown said this is because his team is still examining whether the case can be taken either to the Scottish Criminal Cases Review Commission or the European Court of Human Rights in Strasbourg, with the intention being to inform supporters of the total legal bill – and how much cash is left over for a charity of Mr Meechan’s choosing –when the matter reaches a conclusion.
“He will be advised to do exactly what he said he would do at the start,” Mr Brown said.
“Once it comes to some sort of finality the accounts will be published, but it’s a bit premature at the moment.”
Ultimately, from Mr Brown’s point of view, as Mr Meechan has been able to take his case much further than he would have had he sought funding from the Scottish Legal Aid Board, crowdfunding has enabled him to access the kind of justice he might otherwise have been denied.
Despite this, Mr Mitchell warned that crowdfunding cannot be seen as the answer to all access to justice issues, with the reality being that only a few very specific cases are ever likely to benefit.
“It’s great for giving remedies in one-off cases, but it’s problem is that you can’t apply it across the board,” he said
“If you look at the cases that have got somewhere – Meechan, [Alex] Salmond, [Catalan politician Clara] Ponsati, Morrison [the Orkney case], Article 50 – they have all been around a political issue. If you look at all the hard-luck stories on Crowdjustice, how many of them get money? The average person who complains that the police didn’t take up a complaint is never going to get much support.
“It comes back to crowdfunding being used to fight political campaigns through the courts.”