About the Network An umbrella for Public Interest Lawyering launched in May 2015
KNOWLEDGE ON LITIGATION
WHAT IS LITIGATION?
Litigation is where a legal complaint is initiated before the court by a person who believes he/she has suffered, or is suffering, harm.
For the litigation to be successful, that person must demonstrate to the court that he/she has been legally wronged (in other words, that person’s legal rights have been breached).
WHAT ARE THE CHARACTERISTICS OF LITIGATION?
The following features characterize all types of litigation, including PIL:
There are at least two sides (called the parties), to any litigation:
- the "Claimant": the party which believes it is suffering harm and has a legal cause for complaint (the Claimant is also known by other terms)
- the "Defendant": the party which is defending the legal complaint or claim brought against it (the Defendant is also known by other terms)
In some cases there may be more sides, such as “Interveners” who join a case to support the Claimant or Defendant or to present a demand of their own.
Both parties use arguments based in law (legislation or case law) which require evidence to support them. Both parties use their version of the facts in an attempt to persuade the body hearing the case that their complaint or defence is correct. Cases can be heard by a regional, national, or an international court or another type of less formal dispute settlement body.
The body hearing the case will consider the arguments and decide which side it believes is correct under the law. It will then make a decision (judgment) which allows the Claimant to enforce this judgment against the other side.
Obtaining a judgment may also be useful in a wider context. It can lead to law reform and may draw public attention to an important issue. For more on this see
WHAT CAN LITIGATION ACHIEVE?
The Claimant will ask the court for a particular solution to his/her problem, and this is called the ‘remedy’. The remedy requested will vary from case to case and from court to court. The court can decide to grant or refuse the remedy requested (usually based on whether or not the Claimant wins the litigation), or in some cases to grant a remedy different to the one requested but which it believes is correct and just.
WHAT IS PUBLIC INTEREST LITIGATION?
As the term suggests, PIL describes legal action that is taken in order to advance a “good cause” or issue of public importance. Examples could include cases brought to:
- Improve the human rights situation in a region
- Advance women’s rights
- Promote equality rights
- Ensure the public has access to information and is able to express its opinions
- Protect the environment
HOW IS PIL DIFFERENT TO OTHER LITIGATION?
PIL shares many features with ordinary litigation, but it is different in one crucial aspect: other types of litigation are usually brought in order to protect an individual’s own personal interests. However, the intention of PIL is protect the interests of a section of the public at large or the natural environment.
PIL is brought with the aim of protecting the interests of the public, or at the very least, the interests of persons beyond those who are bringing or defending the litigation. It is similar, therefore, to a group action.
WHAT CAN PIL ACHIEVE?
PIL is commonly used as a mechanism for political, social, or legal change. People engage in PIL when they feel that the legal rights of a certain group (often whole communities or social/cultural groupings) or the natural environment are threatened. An individual or organisation representing the interests of the group or issue in question will bring the legal complaint to court.
In some cases, persons who are working to advance the public interest may themselves be taken to court, for example, by a company or government official. Although such a case is clearly not PIL, the way in which it is defended may be compared to PIL. It may be possible for the Defendants to use such cases to set precedents or reform the law and thereby protect a wider group of people than those named as Defendants.
PIL can provide a short-term solution for an impending or current legal wrong, but it can also be used to seek long-term, systemic change through legal reform.
Since PIL’s main function is to actively promote change, it is usually part of a wider plan and as such, PIL cases are chosen carefully as part of an overall campaign for change which may also include other strategies such as lobbying and demonstrations.
GOALS OF PIL AND REMEDIES WHICH CAN BE SOURGHT
Although PIL is often used as part of a wider campaign, the primary intention of PIL, as with any litigation, is to secure a concrete solution or remedy for a problem.
- A ruling that expresses authoritative support for a group’s argument or complaint
- A legal order requiring a certain action to be taken
- A legal order preventing or stopping an event or series of events from happening
- A ruling securing financial compensation for a group of people who have been legally wronged
The formal finding that a legal wrong has been done is extremely important. The court's official endorsement of one party’s version of the facts over another’s shows the rightfulness of the successful party’s position and this can have long-reaching consequences. It can lead to the court taking positive or preventative action to offer protection to the group or interest facing threat.
Although financial compensation may not seem an appropriate solution to some complaints, its suitability or symbolic value in certain situations should be recognized. Furthermore, compensation may, in some cases, be a complete and suitable remedy for a group who believe they have been wronged.
For more serious or systemic issues such as murder, rape, or gender inequality, compensation alone cannot fully provide a just solution. In such cases, better law enforcement, law reform or social change, is necessary. This is a second goal of PIL: to create a legal precedent for the future so that hopefully, no other individual or group will suffer the same the wrong.
Often rulings by constitutional or supreme courts are legally binding, which means they need to be taken into account when writing laws in the future. In some systems and in certain courts, legal rulings may necessitate parliamentary action.
Finally, PIL can be used to achieve a broader objective than simply winning or defending a case. The very process of bringing or defending a case may raise public awareness of an issue and foster public support for change in a law or practice. In this way, PIL may aid other methods of promoting change like lobbying, political activism, or demonstrations.
IS PIL RIGHT FOR YOU?
When considering whether to use PIL, a group must define a clear objective for doing so. Think carefully if PIL is the best method to achieve your goal, and if so, which solution or remedy to request. Clear goals and careful planning are essential pre-requisites for bringing any PIL to court
WHAT ARE THE POTENTIAL DOWNSIDES TO PIL?
PIL can be hugely successful in securing immediate protection for threatened communities, defending the environment, and in indirectly triggering long-lasting legal change.
However, despite its potential, litigation is not a process to be undertaken lightly. It is time-consuming, adversarial and can be expensive. By raising a particularly sensitive issue or challenging a powerful organisation, a group must be prepared to face public pressure, intimidating behavior, and even physical danger.
PUBLIC INTEREST LITIGATION: YOUR QUESTIONS ANSWERED
We have put together a list of issues to consider before undertaking PIL. This is intended to be a practical guide, proposing practical steps you can take, and answering any questions you may have.