Without litigation funding, the Post Office may have never seen justice. Now it’s time to use it against polluting water companies, writes environment consultant Carolyn Roberts
Ofwat recently announced hefty fines for three water companies dumping sewage in our waterways. Alongside regulatory pressure, collective opt-out legal action like the one I’m leading can play a crucial role in seeking redress for the appalling services water companies have been providing to their customers.
In my case, our allegation is that for years water companies have been misleading regulators about the extent of sewage discharges into our rivers and coastal areas. This isn’t just an environmental catastrophe; it’s a direct assault on our natural heritage and our wallets. We’re losing not just the immediate benefits of clean rivers – the fishing, the swimming, the simple joy of watching wildlife thrive – but also the long-term health of our environment and communities.
But now the means by which we can level that playing field is under threat. And yet, the government appears to be dragging its feet.
Financial backers, known as litigation funders, provide the backing needed to bring these cases to court, ensuring that justice isn’t only available to those with the deepest pockets. In our case, funding from Benchwalk is allowing us to seek more than £800m in compensation for over 20m households who have been wrongfully overcharged.
Litigation funding has been crucial in other high-profile cases too, providing large up front investment for an agreed share of the prospective settlement, but crucially – only when the case is won. Perhaps most notably, it enabled the subpostmasters to achieve justice in their fight against the Post Office. Without this funding, the greatest miscarriage of justice in British legal history might never have been exposed.
However, last year, a Supreme Court decision on the interpretation of legislation in the PACCAR case cast a shadow over the future of this vital funding model.
This ruling, which was contrary to practice for over a decade, created huge legal uncertainty and added significant extra costs and delays. While some work-arounds have been found, defendants continue to try to find ways to attack these solutions in order to prevent funding from being provided to cases like mine.
The previous government, acknowledging the importance of litigation funding, introduced legislation that drew support from across party lines, including from Labour and eminent legal peers in order to provide certainty and clarity as to how litigation funding can work.
Despite this, the general election meant the legislation fell at the final hurdle. And now the new government seems to be kicking the can down the road by pushing back a fix to at least summer 2025.
It must pick up the baton and ensure access to justice can be preserved for billpayers, like those involved in my claim, as well as individuals and small businesses like the sub-postmasters who rely on litigation funding to hold corporate giants to account.
Carolyn Roberts is a water and environment consultant and emeritus professor at Gresham College, London