Guy: Fundraising not easy for most
Crowdfunding judicial reviews has raised over £9.1m in donations for 413 cases, an academic analysis has revealed.
However, despite the high-profile “outlier cases”, the financial reality of bringing a claim for a typical claimant was “incredibly burdensome”.
Sam Guy, a postgraduate candidate at York University’s law school, said he based his study, the first “systematic empirical analysis” of the issue, on cases listed by the website CrowdJustice as the only bespoke crowdfunding site established specifically for litigation.
He found that a total of £9.16m was donated by way of 287,882 individual pledges to 413 judicial reviews, with the average pledge standing at £31.65.
Two cases received no donations at all, while one case raised £422,760 − entrepreneur Simon Dolan’s unsuccessful challenge to the coronavirus lockdown restrictions. The average total which each case received in donations was £22,200.
In an article for The Modern Law Review, Mr Guy described the crowdfunding of JRs as “beset with inequality”.
There was an “apparent disconnect” between “outlying cases raising enormous sums of money, and the more typical, often locally-oriented, cases where fundraising is more limited”.
He said crowdfunding was “used most frequently in judicial reviews which form part of campaigns mobilising to seek or resist broader change, whether at the national or local level, in contrast to cases concerning purely individual entitlement, which are far less prevalent and gain less traction”.
Mr Guy said it was “important to dispel the tempting narrative, perhaps encouraged by the prevalence of outlier cases in the public consciousness”, that fundraising was easy for crowdfunded claimants.
“For the typical claimant, this is far from the case – the financial reality of bringing a claim remains incredibly burdensome and produces significant attrition, which will result in meritorious cases being unable to proceed.”
Mr Guy said concerns had been raised that crowdfunding might encourage “meritless litigation”, particularly in ‘non-investment-based’ crowdfunding – ie, cases where donors have no financial stake in the outcome and so have less incentive to assess its merits.
However, of the 184 crowdfunded cases reaching the permission stage, only 54 were refused while 129 were granted, whether at first application or on appeal.
Of the 129 with permission, 17 were withdrawn due to settlement prior to the hearing and four withdrawn for other reasons, such as the costs risk.
Claimants won at first instance in 29 of the 108 cases that proceeded to a full judicial review hearing and lost in 75. In the remaining four cases, the claimants appealed despite having not lost the case per se.
CrowdJustice cases primarily related to environmental or planning issues, by far the largest subject with 35% of crowdfunding pages.
A smaller group, 14%, related to health and social care, while 10% related to education and 7% immigration.
Mr Guy said it was “common for groups mobilising law within campaigns for national social and legal reform to crowdfund litigation on topical and contentious issues”, often against central government.
“By contrast, there is an underrepresentation of individuals seeking redress for administrative decisions concerning their entitlements, particularly in sectors like immigration and asylum, and social security.
“These observations highlight that the use of crowdfunding is skewed towards campaigns with a communal element, to a seemingly disproportionate degree when compared with the wider judicial review landscape.”
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