How do our court cases work?

Our work on the Net Zero Strategy in 2022 took Friends of the Earth’s legal team back to a familiar stomping ground – the High Court in London.

We've already had landmark climate cases against the government, including its plans to expand Heathrow airport and its funding of a mega gas project in Mozambique, to name just a couple. 

On our most recent outing, our court case was based on the argument that the Net Zero Strategy didn’t meet the government’s obligations under the Climate Change Act to produce detailed climate policies that show how the UK’s legally-binding carbon reduction targets will be met. The judge agreed, and the government must now go back and explain how its policies will achieve the required emissions reduction targets.

Summed up in that way, court action might sound simple. And often, the only times we communicate our court cases are when we launch proceedings and when a judgment is handed down. But those key moments tell just a fraction of the story. Before we can even contemplate the potential outcome, there’s a lot of work that we need to do.

Deciding on court action

We decide on cases depending on perceived unlawful conduct by public authorities, the importance in law of that perceived unlawful conduct, and the benefit of changing that conduct – for example, we consider whether resolving the issues will deliver practical or real-world benefits in service of our goals for people and planet. There are lots of factors involved and each case turns on its own set of facts, but the bigger the potential impact, the more likely we are to take it.

For example, we decided to take on the Net Zero Strategy case because it was a challenge to our national climate strategy, because of its potential to have impact across the whole economy, and due to the nature of the legal provisions in play under the Climate Change Act 2008. It had the potential to strengthen national-level climate governance going forwards.

Before we can determine whether court action is necessary, we need to review the government decision in question (what it did, or didn't, do or say) and compare that against legal requirements. For instance, with the Net Zero Strategy, we pored over the 400-page document to determine whether there were any potential illegalities in it and whether it aligned with Climate Change Act 2008 requirements. We then had 3 months to file the claim at court, but the timeframe can be much shorter in cases related to planning and infrastructure. With the Heathrow expansion case, we had just 6 weeks.

If we identify problems with what the government is proposing or has done, we then set up a core team to work on it further.

What happens in court?

If we're taking government to court, the type of proceeding we typically follow is called a “judicial review”. A judicial review is when a judge reviews the lawfulness of a decision or action taken by a public authority.

No court case is the same. Each case can happen very quickly, or they can involve multiple stages with things like applications for court orders, interim hearings at court, gathering new evidence or various (sometimes lengthy) exchanges between the parties.

Generally speaking, a judicial review at the High Court involves the following stages.

First contact

• Once we've developed our potential legal arguments, we send a pre-action letter to the Defendant public authority to highlight our concerns, request a response on what we say they’ve got wrong and ask for more information. If they agree with us, they should concede early on that point and go away to fix the problems.   
• Normally they disagree with us, at which point we build a formal legal case with any extra information supplied. We then issue the case at court. Quite often the government will refuse to provide all the information it should do and wait to see if the court gives permission for the claim to proceed, before more fully disclosing information and/or conceding points. It does this to make it harder for the claimant to make their case, but it should actually disclose necessary relevant information upfront.
• Once our claim is in, the Defendant and any interested parties can then respond, and we may reply to what they say. 

Permission from court  

• Next, the court considers all the paperwork and determines if the case is "arguable", in other words if it presents arguable errors of law in the Defendant’s decision. This isn't a final view but rather a filter stage to weed out bad cases that don’t need to be answered or take up court time.
• If we’re granted permission to proceed (and it may be on fewer grounds than we set out initially), then we proceed towards trial and make preparations. 
• The next step is for the Defendant and any interested parties to prepare detailed grounds of resistance and disclose any further information on which they need to rely, or which is necessary to disclose as relevant to the case.  
• There can then be some back and forth, for example seeking further disclosure and probing various issues to develop the case, conducting further research to strengthen our claim, or dealing with third party intervenors.  

The trial    

• A typical judicial review might take around 9–12 months to reach trial, although this can vary and can be sooner if it's considered urgent or very important. Before the trial, each party produces and exchanges what’s called a “Skeleton Argument”, which is basically the summary of their argument that'll be presented at trial.  
• Finally we have the trial, where our barristers present our argument, the defence responds and we (as the claimant) close the proceedings.      

We all then wait for the judgment, which can take a few more months to come in unless it's prioritised and done sooner. If we’re successful, there’s usually a little celebration to mark our collective hard work, before we get cracking on the next case! 

If we’re not so lucky, we weigh up the pros and cons of appealing the judgment and take it from there. While similar to the strategic analysis for a case, this has the added element of assessing what we’ve achieved so far, even from losing, and what might happen at the Court of Appeal. Even though we may lose legal arguments, we can still achieve considerable campaign impact given the wider context within which the case sits, or because in losing we’ve still developed a point of law in a positive way. External events can also shift the context for the case in favour of our position while the typically slower legal process progresses. And as a campaigning organisation we may be able to influence that external context helpfully as well.  

Help from friends

As you can imagine, we don't take court action lightly. It requires a lot of time and resource, and we need to pick our battles carefully. Thankfully, we've been really fortunate in the past to count on support and collaboration from a range of different allies, whether that’s from other campaigning NGOs, grassroots organisations including our fantastic Friends of the Earth network, academics and experts, or the generosity of barristers and law firms giving their time for free or at discounted prices.

Of course, our supporters are a key part of this work. From signing petitions to donating to our legal intern programme or setting up a regular gift, we're really lucky to count on the support of people across the UK. It’s a real source of pride for us that our legal work is very largely made possible by regular gifts from people who relate to our struggle and give what they can to support our work for the greater good of us all.