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Lack of Financial Resources

Litigation invariably requires significant financial resources. There is a clear need for increased funding for legal centres and NGOs so that they can conduct ESC rights litigation.

Beware of the potential financial costs:

You might need to go back to court to get a successful decision enforced, etc.

Reaching international mechanisms for a hearing can be time-consuming and expensive when the rights are theoretically justiciable at the national level and judges are conservative. These local remedies have to be exhausted, even though the result may be predictable.

There is a risk of having to pay opposition costs as well - the government is likely to have expensive lawyers! It should be expected that an individual would not have to shoulder such burden alone. Indeed, if litigation is to be pursued activists should seek to take advantage of all public funding available for bringing cases, as well as seeking any protective costs orders they can to limit their liability in the event the litigation is unsuccessful.

Without such protection, you could suffer in a similar way to the organisation in the case study below.

The financial burden is more pronounced for cases that (i) are legally or factually ambitious, thereby requiring significant interdisciplinary sociological, health, economic and environmental evidence; (ii) involve large numbers of victims; or (iii) contain a strong opponent that uses delaying and procedural tactics.

The cost of litigation can often be lessened through the active involvement of academic lawyers, international non-governmental organisations (NGOs) and union volunteers and community members, through the free donation of services by lawyers and experts, or through the contingent levying of legal fees. Attracting lawyers is sometimes difficult if the applicants are an unpopular minority.


Financial costs case study

The following quote is from Linda Hancock, who was involved in IVF cases in Australia (from Litigating Economic, Social and Cultural Rights: Achievements, Challenges and Strategies: Centre on Housing Rights and Evictions, at p.57):

‘We are a really small organization, a small state based but nationally networked NGO that has a membership of a couple of hundred women and women’s organisations. Like most NGO’s, our members pay minimal dues and we mostly lobby government on policy issues relevant to gender equality and women’s rights. We run on an incredibly tight budget from a community base.

Suddenly, we found ourselves involved in a potentially high cost legal action in the highest court in the country, which caused incredible internal problems for us. We had resignations from the executive because we weren’t sure whether we would become personally liable and even lose our homes if we lost. We had incredible support from the lawyers and from the community-mainly women’s groups and our national WEL. We had a national fund raising drive and we raised quite a bit of money – we had to cover the out-of-pocket expenses and maintain a fighting fund.'