2. Getting to ‘Go’

2.1. Planning the Case

Players begin the boardgame Monopoly at the space ‘Go’. Plaintiffs begin the endgame of PIL by filing an originating process in the court. The originating process may be a statement of claim, a summons or other application seeking the relief that is appropriate for the legal claim or cause of action (the claim) raised in the originating process.

The commencement of the PIL is the culmination of a process of planning that needs to begin long beforehand. Planning PIL includes finding willing and able plaintiffs, instructing knowledgeable, experienced and willing lawyers, choosing the appropriate claim, obtaining evidence to prove the claim, and being able to fund the litigation. I will explain each task.

2.2. Willing and Able Plaintiffs

Citizens,^[1] community groups^[2] or environmental non-governmental organisations (NGOs)^[3] must be willing and able to bring the PIL. Willingness is not only a product of enthusiasm and zeal for the climate change cause but also a cultural attitude. A society’s cultural traditions, including its legal culture, need to support, and not inhibit or punish, citizen access to justice through their bringing PIL in the courts. PIL is often a form of protest, challenging powerful interests in the government and the private sector. Where protests and challenges to power are met with sanctions, citizens and citizen groups will be inhibited from taking PIL. Hence, promotion of PIL involves promotion of the democratic principles of free speech and assembly, and access to justice.^[4]

Ability is a product of three attributes: first, knowledge and experience of the subject matter of the PIL, such as the climate change problem sought to be addressed by the litigation; second, the capacity to access sufficient human, financial and material resources to bring the litigation; and third, personal attributes such as dedication, perseverance and resilience.

2.3. Knowledgeable, Experienced and Willing Lawyers

Citizens, citizen groups and NGOs can represent themselves in courts; they are not required to be represented by lawyers. However, lawyers improve the prospects of the PIL succeeding if they are knowledgeable and experienced in litigation, especially litigation of the type and subject matter of the PIL. This involves knowledge in the relevant substantive and procedural law upon which the PIL claim relies and experience in the craft of applying that law in litigation. PIL, by its nature, complexity and importance, justifies engaging the assistance, advice and advocacy of leading lawyers. There is a need, therefore, to facilitate access to leading lawyers by addressing the issue of the cost of legal services. One way is if lawyers are willing to act for the plaintiffs in the PIL, on a no fee or reduced fee basis. This is addressed in section 2.6 on funding the litigation.

2.4. Choosing the Appropriate Claim

Successful PIL depends on choosing the appropriate claim to address the climate change problem of concern. The claim must be founded on adequate and appropriate law. The law must create or enable legal actions to be brought. If there is no right of action, there can be no litigation. Civil actions could be to enforce compliance with the law by the government and the private sector and to restrain and remedy non-compliance (civil enforcement), to obtain compensation for loss or damage caused by a breach of duty (damages actions) or to review the merits of administrative decisions on a rehearing (merits review). Criminal actions could be to prosecute and punish wrongdoers for offences against the law.

In choosing the appropriate claim for the PIL, plaintiffs and their lawyers should be the activist, be creative, show the way, choose a suitable vehicle, have an emotive hook, ensure appropriate remedies and avoid a scattergun approach. I will unpack these seven tips.

First, be the activist. Courts are responsive to the claims brought before them. Hence, plaintiffs, not the courts, must be the activist. Plaintiffs must provide the courts with the opportunity to be active, to contribute to solving climate change problems and developing climate jurisprudence. The doctrinal development of environmental and climate change law is a proper role for the courts.^[5]

Second, be creative. Albert Einstein is attributed (although possibly misattributed) with saying that insanity is doing the same thing over and over again and expecting different results. Irrespective of the source of this aphorism, this definition of insanity fits much of environmental PIL: doing what has always been done but expecting a different result. There is a need for legal imagination,^[6] for thinking intra-disciplinarily and inter-jurisdictionally.

Intra-disciplinary thinking involves thinking within the discipline of law but across the boundaries of the bodies of substantive law that make up the discipline of law.^[7] Climate change litigation may be based on claims not only in substantive climate change or other environmental legislation but also in administrative law, constitutional law, human rights law, tort law (including nuisance, negligence, trespass, conspiracy, deceit and misrepresentation), contract law (including misrepresentation and void for public policy), property law (including real property, misrepresentation in sale or lease, and public trust), trade practices and consumer law (including misleading representations and practices) and corporations law (including directors’ duties of care). Consideration needs to be given to how claims based on these diverse bodies of substantive law can be adapted to fit the purpose of climate change litigation.

Inter-jurisdictional thinking^[8] involves looking over the borders of one’s home jurisdiction to seek assistance in the law of other jurisdictions. Environmental law is increasingly becoming globalised and harmonised.^[9] Inspiration and ideas for climate change litigation in one jurisdiction can be drawn from international law, such as the Paris Agreement  and decisions of the Conferences of the Parties; other jurisdictions’ laws, such as national and sub-national climate change legislation; and judicial decisions of international, national and sub-national courts. Consideration can be given to how the laws and judicial decisions of other jurisdictions can be adapted to frame and adjudicate the claims that could be made in the home jurisdiction.^[10]

Third, show the way. There is a need, in framing the PIL claim, to be a leader, to demonstrate to the court not only what the claim is but also how and why the court can and should uphold it, legally and factually. It is insufficient to make a bare appeal to what is right or just. That emotive hook is needed, as explained below, but first the path to success must be laid.

Fourth, choose a suitable vehicle. The PIL claim is the legal vehicle for achieving the purpose of the PIL, such as to reduce the sources of greenhouse gas emissions or preserve the sinks of greenhouse gases, or to adapt to the consequences of climate change. Consideration needs to be given to which claim is the best vehicle to achieve this purpose. This involves checking that the facts that will be able to be proved are suitable and sufficient to establish the claim and to obtain the appropriate relief.

Fifth, have an emotive hook. The judge hearing the PIL has choices in adjudicating the claim. There are choices in finding and interpreting the law to be applied, in finding the facts from the evidence before the court and in granting relief for any proven breach of law.^[11] Some of the choices will favour the plaintiff’s case, some the defendant’s case. The judge needs to be persuaded to choose in favour of the plaintiff. This is easier if there is an emotive hook — a compelling story, strong facts, or reasons of justice and fairness.

Sixth, ensure appropriate remedies. The PIL claim is that there has been some breach of substantive law. But establishing a breach of law is insufficient; the breach needs to be remedied. Only then will the purpose of the PIL be achieved. There is a need, therefore, to check that the remedies available for a particular type of claim are appropriate to achieving the purpose of the litigation. Different remedies are available for different claims.

The remedies in judicial review proceedings may include a declaration as to rights, duties or liabilities or whether there has been a wrong committed;^[12] an injunction, either prohibitory (restraining wrongful conduct) or mandatory (remedying wrongful conduct or its effects);^[13] and orders in the nature of prerogative orders, such as mandamus (compelling the exercise of a public duty by government),^[14] including continuing mandamus (compelling the ongoing performance of a public duty), prohibition (restraining government action) or certiorari (quashing government decisions).

In administrative proceedings involving a merits review of administrative decisions, the court usually has the same functions and powers as the administrative decision-maker whose decision is under review, such as granting or refusing permits, making administrative orders, or making any other decision the administrative decision-maker could have made.^[15]

In civil actions, remedies may include monetary damages, including compensatory damages (compensating for personal or property injury or for economic loss);^[16] punitive damages (punishing past wrongdoing and deterring similar future wrongdoing); natural resources damages (compensation for damage to public natural resources, such as marine and terrestrial waters, and their birds, fish and other wildlife); and restitution (removing unjust enrichment, such as property or money gained by the wrongdoer and restoring the property or its value to the wronged party).

These substantive remedies in civil actions may be supplemented by an order for the payment of the costs of the proceedings (which include the legal fees, expert witness fees and other court costs), such as an order that the unsuccessful party pay the costs of the successful party.^[17]

Adequate redress and remedy are fundamental to the achievement of access to environmental justice.^[18] If rights cannot be upheld, duties cannot be enforced or wrongs cannot be remedied, justice is left undone.

The court must also be willing to grant the appropriate remedies. The grant of a remedy is usually at the discretion of the court. This is necessary to achieve justice in the individual circumstances of the case. However, inappropriate or too frequent exercise of the discretion to withhold relief can undermine the rule of law and the statutory purpose and scheme, and may not secure equal justice.^[19]

There is a need to check that the court in which the PIL is to be brought has jurisdiction to grant the appropriate remedy. Different courts have different jurisdiction to grant different remedies.

Plaintiffs also need to be realistic as to what can be achieved by the PIL. Consider a judicial review claim of a government decision. Success in the claim may not necessarily result in the government making a different decision on remit, but it may lead to an improvement in the process of decision-making, increase transparency and accountability, and raise public awareness.^[20]

Seventh, avoid a scattergun approach. PIL should not be viewed as a scattergun, hoping to hit the target with one of multiple shots. There is a need to be selective in choosing the claims and arguments that are most likely to succeed. Poor claims and arguments deflect attention from, and taint, good claims and arguments, and add unnecessarily to the costs of the litigation, both the plaintiff’s and the defendant’s costs.

2.5. Evidence to Prove the Case

Plaintiffs bear the burden of proving their claim in court. Evidence is needed to establish the claimed breach of law and the claimed relief to remedy the breach of law if established. Evidence can include evidence of fact of lay witnesses; opinion evidence of expert witnesses; documents, including the administrative record or business records, and images such as photographs and videos; admissions by the defendants; and answers to notices to admit facts or to interrogatories.

There is a need to ensure the quality, reliability and admissibility of all evidence. This requires careful selection of the persons who are to be called to give evidence, especially experts. Much environmental litigation requires expert opinion evidence.^[21] If scientific, technical or other specialised knowledge will assist the court to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may give opinion evidence.^[22]

A difficulty PIL plaintiffs encounter is being able to access, and afford to pay for, experts who not only satisfy the minimum criteria for being an expert but also have excellent knowledge, experience, reputation and communication skills so as to be reliable, credible and persuasive witnesses.^[23] One impediment is that many experts who are work-dependent on the government and private sectors may be unwilling to work for PIL plaintiffs challenging decisions and conduct of those sectors. An even greater impediment is PIL plaintiffs’ usual lack of financial resources to pay for experts. Some of the means discussed below for funding PIL, such as by public or private legal aid grants, may provide funds to pay for experts, but other means do not. The provision by lawyers of their services on a pro bono, contingency or reduced fee basis only addresses the costs of legal services, not of expert services.

Suggestions have been made for an expert aid program involving a system of pro bono expert assistance that increases the availability of expert assistance and improves the quality of that assistance. Experts in various disciplines could form associations which encourage and facilitate pro bono expert assistance. Legal professional associations could encourage and facilitate effective use of this expert assistance.^[24] A similar initiative could be pursued by universities.

2.6. Funding the Litigation

A critical issue is how to fund the PIL. Litigation is costly. Consideration needs to be given to how to fund not only the plaintiff’s costs of the litigation but also the defendant’s costs if the litigation is unsuccessful and the court orders the plaintiff to pay the defendant’s costs. There are at least seven means by which PIL plaintiffs can fund PIL:

• the plaintiff, if they have or can raise the funds;
• litigation funders,^[25] usually where damages are sought as a remedy as the litigation funder takes a cut of the damages awarded;
• legal aid, although these days legal aid is rarely available for environmental litigation;
• public interest legal centres, such as the Environmental Defenders Office or Environmental Justice Australia;
• university legal clinics, where available;
• lawyers and experts acting on a contingency basis (‘no win, no fee’), a reduced fee basis or a no fee basis (‘pro bono’);^[26] or
• intervenor funding, in some administrative proceedings, such as was done in Ontario, Canada.^[27]

A PIL plaintiff can also apply to be protected from adverse costs orders if the litigation is unsuccessful. The court rules may provide the court with a discretion not to order an unsuccessful plaintiff to pay the costs of the defendant if satisfied the litigation has been brought in the public interest.^[28] A PIL plaintiff can also apply up-front for a protective costs order capping their liability to pay the defendant’s costs.^[29]