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Content last updated: November 21, 2023

Pre-Litigation Considerations

Questions to ask yourself before taking any legal action

Is this a good case?

A good case isn’t simply a case that you think your client or service user will win. There are other factors that you must consider in public interest litigation.

Does this case provide an opportunity to let the court answer the specific question that you want it to answer? The goal of public interest litigation is getting a decision which will have a broad impact. To do that, you need to identify a case which will resolve an issue of broad public concern, not simply provide a remedy for the person bringing the case.

Do the facts of your case fit the challenge that you are trying to bring? The fact that a particular individual is impacted by a decision or trend isn’t always enough to make it ripe for public interest litigation. Each case turns neatly on its own facts. It is important to ensure that a particular fact about the proposed applicant doesn’t distract the court from the question that you want answered. For example, if you intend to bring a judicial review to challenge a public body’s decision to deny an applicant a benefit, ensure that her denial can only be attributed to the ground that you want to challenge. If there is another contributing factor, the court may not need to or be able to address the public interest issue in the proposed judicial review.

Is there a chance that bringing this particular case could have negative unforeseen consequences? In some instances, courts make comments in their judgments which clarify that the public body is not obligated to take particular actions. These kinds of decisions can have the exact opposite effect in that they narrow a public body’s obligations and make bringing future public interest litigation more difficult.

What information do I have? What information do I need? How can I get it?

Typically, when bringing litigation, you need enough evidence to establish your case. The applicant bears the onus of proving to the court that the other party has broken the law through its action, application of the law, or by omission. When you are bringing public interest litigation, you need all of the information and evidence of the problem that you are asking the court to resolve. Often reports from experts about the implications of the decision that you are challenging, statistics on the number of individuals that might be impacted by the public body’s practice, and any other information that helps the court see the bigger picture of the case before it are important to obtain.

Are we prepared – do we have our house in order?

Litigation requires disclosing a lot of information and documents to the opposing party and to the court. You will not have full control over what information is disclosed. Judicial review, in particular, is a process in the parties owe the court what is known as a ‘duty of candour’. For now, it is sufficient to say that the parties must put ‘all of the cards on the table, face up’.

In terms of the disclosure of documents, as in any civil litigation, the general rule for disclosure is that any document that is relevant to the proceedings can be subject to disclosure unless it is protected by privilege. Privilege exists between a lawyer and their client. Privilege protects legal advice from disclosure to any other party. The information that is protected by that privilege will depend on what you have engaged your lawyer to do. For these purposes, it is sufficient to say that you must be careful when preparing documents for potential litigation if you have not engaged a solicitor because those documents may be subject to disclosure. It is also important to know that “document” has a broad meaning for the purposes of disclosure. A document could be a file on your phone or computer, an email that you sent, a text message, as well as relevant electronic and paper documents. In some instances, if you haven’t engaged a solicitor before preparing for litigation, you may have to disclose documents that will explain the weaknesses of your case to the other side.

Any documents that are disclosed will be scrutinised very closely. It is important to ensure that your client or service user and your organisation are ready for this kind of scrutiny. Consider, for example, ensuring that your board is properly constituted before lodging a case.

Part of successful public interest litigation also involves raising the profile of the case and the persons or organisations supporting it. This is another reason to ensure that your house is in order because an organisation may also open itself up to media scrutiny.