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Litigation is the process of bringing an action in court to enforce a right.
For the litigation to be successful, you must demonstrate to the court that you have been legally wronged (i.e. that your legal rights have been breached).
The person who starts the litigation (the Claimant) will ask the court for a particular solution to his/her problem. This is called the ‘remedy’.
The remedy requested will vary from case to case and from court to court.
The court can decide:
For example, you might ask a court:
For further information, see “What Remedies Are Available?”
The key characteristics of litigation are as follows:
a) There are at least two sides (called the parties), to any litigation:
b) Both parties use arguments based in law (legislation or case law) which require evidence to support them.
c) Both parties use their version of the facts in an attempt to persuade the court that their complaint or defence is correct.
d) Cases can be heard by a court (e.g. a regional, national, or an international court), a tribunal or another type of less formal dispute settlement body. (For simplicity, we refer to the body hearing the case as “the court”).
The court will consider the arguments and decide which side it believes is correct under the law. It will then make a decision or judgment.
After first hearing (the first time the court heard the case) the decision can generally be appealed in a higher court.
After any appeals have been decided, the successful Claimant will then seek to enforce this judgment against the other side (see “How can I enforce a court order?” for further information).
Obtaining a judgment may also be useful in a wider context. It can lead to law reform and may draw public attention to an important issue.
For further information, see “Is Public Interest Litigation for Me?”
As the term suggests, “Public Interest Litigation” is litigation that is taken in order to advance a “good cause” or issue of public importance.
For example, asking the court to:
Click here to see a list of potential areas in which PIL may be useful.
Public Interest Litigation shares many features with ordinary litigation, but it is different in one crucial aspect:
PIL is brought with the aim of protecting the interests of the public, or at the very least, the interests of persons beyond those who are bringing or defending the litigation. It is in some ways similar to a group or class action where lots of claimants with similar interest bring a claim.
Public Interest Litigation (PIL) is commonly used as a mechanism for political, social, or legal change.
People engage in PIL when they feel that the legal rights of a certain group (often whole communities or social/cultural groupings) or the natural environment are threatened (for further information, see “Is Public Interest Litigation for Me?”)
An individual or organisation representing the interests of the group or issue in question will bring the legal complaint to court (for further information, see “Who can take legal action?”).
Example: challenging land grabs in Kenya
In Kenya, and in other countries in Africa, community groups and NGOs have successfully challenged practices of land appropriation and exploitation by governments and corporations in domestic courts and in the African Court on Human and People’s Rights.
In some cases, people who are working to advance the public interest may themselves be taken to court, for example, by a company or government official. Although such a case is clearly not PIL, the way in which it is defended may be compared to PIL. It may be possible for the Defendants to use such cases to set precedents or reform the law and thereby protect a wider group of people than those named as Defendants.
PIL can provide a short-term solution for an impending or current legal wrong, but it can also be used to seek long-term, systemic change through legal reform (for further information, see “Is Public Interest Litigation for Me?”)
Since PIL’s main function is to actively promote change, it is usually part of a wider plan and, as such, PIL cases are chosen carefully as part of an overall campaign for change which may also include other strategies such as lobbying and demonstrations (for further information, see “Alternatives to PIL: Campaigning”).