The Good Law Project, high-profile enthusiast for strategic litigation, says that it ‘bring[s] cases that seek to deliver changes with widespread effects’. Public Law Project says that strategic cases can ‘create awareness and publicise the cause for which the strategy is mobilised, encourage public debate, set important precedents, achieve change for people in similar situations, and spark policy changes’. Liberty says it ‘challenge[s] unjust laws, policies and practices by taking landmark legal cases on the most pressing human rights issues of our time’.

If it is about more than a court victory, what about the client? There is a danger that the client’s best interests become merely nice to have rather than central to the case. Time, energy and resources that could have been devoted solely to securing the best outcome for the client might be spread more thinly. Worse, the client’s personal interests might actually be undermined or damaged by a wider campaigning purpose. The client at the heart of a strategic case loses one of their main arguments: their uniqueness. It is axiomatic that a judge deciding such a case will be mindful of wider impacts. Judges are trained and socialised in a small-c conservative legal culture based on precedent. To ostentatiously cloak oneself in the interests of a larger group risks violating the dress code for court success.

Lawyers love strategic litigation. Well, some do. The opportunity for high-profile work, to really drill down into important issues, to get one’s name in the law reports or even the textbooks, to push out some worthy social media posts, to feature on one’s firm’s or chambers’ news feed, to give talks at conferences and to get one’s name in the sacred legal directories — to rise up the legal pecking order, essentially — are all potential accompaniments to involvement in such cases. It is all very alluring. And it is certainly great marketing.

Some clients do not have the luxury of deciding whether to litigate or not. Court really is their last resort. In bringing a challenge, their legal team may rely on arguments that have wider impacts and affect many others in a similar situation. The successful Rwanda removal case that reached the Supreme Court in 2023 stands as an exemplar.1R (AAA (Syria) and others) v Secretary of State for the Home Department [2023] UKSC 42 – see February 2024 Legal Action 22. A handful of refugees facing removal to a strange country lay at the heart of the case. The same was true of the Quila case on the spouse visa age in 2011, involving a separated young couple.2R (Quila, Bibi and others) v Secretary of State for the Home Department [2011] UKSC 45; June 2012 Legal Action 41.

In the immigration cases with which I am familiar, the Home Office can often stack the deck by conceding cases with strong facts. Sometimes, all challenges of a certain type have even been conceded in order to prevent the issues being aired and avoid disclosure. This leaves those without a lawyer subject to potentially unlawful conduct.

So, sometimes an organisation will bring a case either directly, if it has standing, or by seeking a proxy. There have been significant successes, including the Detention Action case from 2015.3Lord Chancellor v Detention Action [2015] EWCA Civ 840. For more on the Detention Action litigation, see September 2015 Legal Action 16. But there have also been many, many high-profile losses. These can be claimed as moral victories or argued to have achieved some beneficial outcome other than a mere court victory. Attention can be attracted, money raised and a campaign boosted. For these same reasons, a powerful reaction can also be provoked, potentially making it more difficult for involuntary litigants or organisations with legally meritorious cases to defend basic rights.

Opinions will inevitably differ and judgements will be made. But it is important to be aware of the potential conflicts of interest and unintended consequences arising from strategic litigation.