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Whether barrister, solicitor or both, lawyers will of course have their own concepts of that which constitutes frontline work. Both as to content and methodology. As I try and recount below, what public law work usually lacks in financial rewards, it repays in scope for real impact across diverse areas assisting the most vulnerable and ‘unloved’. Plus, some spectacular courtroom encounters. The skills and approaches that we take for granted at the English and Welsh Bar (including versatility as to subject areas and a willingness to fight the corner for the least popular of clients) are invaluable resources for such efforts.
The celebrated and much missed US Supreme Court Justice, the late Ruth Bader Ginsburg is quoted as having said: ‘If you survive three years of law school, you have a talent and skill that is precious, but if you use it for only personal gain – you won’t get long-term satisfaction. Do something outside of yourself that will help make things better for others not as fortunate as you.’
Ask yourself which is worse – having to do this work for little-or-no financial reward, or the work not being done at all. If considering whether you can make a difference in these ways, the following account of my efforts is intended simply to demonstrate that if a mostly insolvency and commercial disputes lawyer can survive in the areas of work described below, so can (and should) you.
Perhaps you are better suited to a first instance ‘slugfest’. Maybe the prospect of a cerebral appeal with renown specialist counsel as your opponents is the real draw. Either way, readers should be left in no doubt that both are available in abundance across the several jurisdictions based on the English common law system.
From the general to the particular, then. The litigation efforts re-told below focus on specific court work that I have led since early 2020 in the Turks and Caicos Islands (‘the TCI’), which are about 600 miles south of Miami. Until 1848, the TCI were the southern part of The Bahamas.
Public interest litigation and strategic litigation both use courts for structural change. Public interest litigation being more a cause in itself. That cause being assisting marginalised and underrepresented communities. Its close cousin, strategic litigation, is usually associated with structural challenge in respect of often profoundly divisive issues such as same-sex marriage or the immigration status of asylum grantees and those not originally from the jurisdiction. Strategic litigation looks to the legacy beyond that particular case. Whether influencing the political agenda or an attempt just to move past an implacably hostile one. Strategic litigation very often challenges accepted norms and sets for the first time the applicable law. While strategic litigation may well encompass test case litigation, plainly not all test case litigation is part of a wider strategy.
Mine. Necessity, rather than vanity. Based around the core notion of improved societal fairness and cohesion. Always including a strong element of testing. Both myself and eager colleagues as to area of law and some terrible odds. Often with overtly hostile opposing teams’ members. First, and covered in earlier issues of this magazine, habeas corpus in respect of detained illegal entrants into TCI in October 2019 from Sri Lanka. They were left marooned first by a focus to convict the people smuggler that left by COVID-19 and the prolonged lockdowns that era brought. Involvement of the UNHCR and the Court of Appeal later, by August 2020 my clients and their compatriots were released. Next, claims for false imprisonment, which required litigation to ‘bless’ a conditional fee agreement that made those follow-on proceedings viable. The fact that those proceedings were won, with damages awarded and then too similar proceedings, will hopefully avoid a similar experience for any other illegal arrival into TCI.
After that, multiple successful asylum claims. Either at the level of Minister or on appeal to the TCI Governor. So far, as they say, so simple. But despite so many asylum grantees between October 2022 and June 2023 there is still no way of exercising travel rights protected under the TCI Constitution. The absence of travel documents being attributed to the British government and that issue still being before the courts.
Courts at a senior legal have emphasised the benefits of campaigning organisations bringing strategic litigation as distinct from individual complaints (see, for example, A Local Authority [2021] UKSC 52, [2022] AC 1322 at [8] (Lord Stephens). But what about the jurisdictions where no such organisations exist? The reasoning in support of their involvement reflects resources, expertise and institutional knowledge. Or in the context of the TCI, me and my colleagues at the firm that I jointly founded. Another rationale for preferring campaigning organisations to individual litigants is the greater willingness, it is said, for such organisations to settle cases. Never a dilemma in the TCI, where no ‘intimated’ claims with which I have been involved have ever been so much as discussed with government lawyers. Not for lack of effort on our part. Far less any compromise reached.
Of course, strategic litigation is not the sole domain of campaigning organisation in larger jurisdictions. Sometimes public bodies have a relevant mandate (such as the Disability Rights Commission: R (A and others) v East Sussex CC [2002] EWHC 2771 (Admin)). At least for now, in the TCI context, the Human Rights Commission is prevented by express effect of its founding statute from participating in a complaint that then becomes litigation (s 14(2)(a) of the Human Rights Commission Ordinance). As Gina Miller demonstrated in respect of Brexit (R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5, [2018] AC 61] in arguably the highest profile strategic litigation of at least the last ten years, individual litigants can and do have a tremendous impact. But those are much harder to find within populations so much smaller.
For a lawyer with the type of strategy (such as it is) outlined above, the advantage of the TCI relative to larger jurisdictions is the substantial and continuing unmet demand from litigants with the types of claims that fit the strategy. Add to that a rapidly growing and diverse population with a disproportionately small electorate resistant to change. That fact pattern led to successful judicial review proceedings in respect of refused Islander Status applications for a total of as many as 35 expatriate litigants.
There is obviously little that can be done for subsequent applicants for such status about legislative changes introduced in the aftermath of the final hearing. But at least the successful outcome of the proceedings themselves has ensured reconsideration of the clients’ rejected applications. This reconsideration in accordance with the original (unamended) legislation. Just as important in the strategic sense is the environment of accountability that demonstrates to the decision makers.
Incremental, yes. But objective and tangible progress nonetheless.
Same-sex marriage issues across the Caribbean in the aftermath of the Privy Council decisions of March 2022 in respect of Bermuda and the Cayman Island (Attorney General for Bermuda v Roderick Ferguson [2022] UKPC 5 and Chantelle Day and another v The Governor of the Cayman Islands [2022] UKPC 6 respectively) have been covered extensively in this magazine (my article ‘Same-sex marriage in the Caribbean: winds of change?’, Counsel, April 2022, and ‘Same-sex marriage in Bermuda and pro bono’, Anna Hoffmann, Dr Leonardo Raznovich and Alex Potts KC, Counsel, June 2024). The wider strategy across many jurisdictions and at many court levels is detailed in the second of those articles. Activity at the level of the European Court of Human Rights involves the well known Cayman-based campaigning organisation Colours Caribbean, which is also appearing as an interested party in the pending (hearing scheduled for late October 2024) TCI appeal of Haymon (Haymon and Sankar v Director of Immigration and AC [2024] TCASC 14). Missing from the outcome in favour of the TCI couple was a declaration as to breach of the freestanding constitutional protection to equality before the law (one of three breaches for which declarations were sought, the other two were obtained). Also missing from the decision and sought in the appeal is an actual solution by way of changes to legislation declared to breach constitutionally protected rights. Every aspect of the couple’s victory at first instance is challenged in the cross-appeal. So, the stakes remain high.
Involvement by lawyers in work of this kind can take many forms and can be offered at many stages. It allows a barrister to see a case often from a much earlier (planning) stage. It is jam-packed with the unexpected and bizarre. For example, the routes travelled by some of my habeas corpus (then asylum) clients beggar belief. Their lived experience is both extremely humbling and motivating. It has bittersweet moments, such as a paralegal heading off to the English Bar and my much missed junior ascending to the bench.
Being practical, what I have described above has offered a more managed blend of pro bono/discounted fee work than the referral process of, say, Advocate. Not – at all – to lessen the impact in English litigation of Advocate. The simple point is that until you try and work on any case of this type you will give yourself reduced scope to test your skills in and out of court. At several points since early 2020 I have questioned my initial decision to dive into habeas corpus. But only in the context of being curious about what within me set me off on this course. Whatever it was, I am pleased it happened and proud of the difference for the better that my team and I have made. In some senses it feels as it we are just getting going. Consider for yourself the benefits of similar efforts, in the many places those continue to be needed.
Tim Prudhoe jointly founded and runs TCI law firm Stanbrook Prudhoe. He appears in all levels of court across the Caribbean and beyond. He is also a member of chambers at 3 Hare Court.
Whether barrister, solicitor or both, lawyers will of course have their own concepts of that which constitutes frontline work. Both as to content and methodology. As I try and recount below, what public law work usually lacks in financial rewards, it repays in scope for real impact across diverse areas assisting the most vulnerable and ‘unloved’. Plus, some spectacular courtroom encounters. The skills and approaches that we take for granted at the English and Welsh Bar (including versatility as to subject areas and a willingness to fight the corner for the least popular of clients) are invaluable resources for such efforts.
The celebrated and much missed US Supreme Court Justice, the late Ruth Bader Ginsburg is quoted as having said: ‘If you survive three years of law school, you have a talent and skill that is precious, but if you use it for only personal gain – you won’t get long-term satisfaction. Do something outside of yourself that will help make things better for others not as fortunate as you.’
Ask yourself which is worse – having to do this work for little-or-no financial reward, or the work not being done at all. If considering whether you can make a difference in these ways, the following account of my efforts is intended simply to demonstrate that if a mostly insolvency and commercial disputes lawyer can survive in the areas of work described below, so can (and should) you.
Perhaps you are better suited to a first instance ‘slugfest’. Maybe the prospect of a cerebral appeal with renown specialist counsel as your opponents is the real draw. Either way, readers should be left in no doubt that both are available in abundance across the several jurisdictions based on the English common law system.
From the general to the particular, then. The litigation efforts re-told below focus on specific court work that I have led since early 2020 in the Turks and Caicos Islands (‘the TCI’), which are about 600 miles south of Miami. Until 1848, the TCI were the southern part of The Bahamas.
Public interest litigation and strategic litigation both use courts for structural change. Public interest litigation being more a cause in itself. That cause being assisting marginalised and underrepresented communities. Its close cousin, strategic litigation, is usually associated with structural challenge in respect of often profoundly divisive issues such as same-sex marriage or the immigration status of asylum grantees and those not originally from the jurisdiction. Strategic litigation looks to the legacy beyond that particular case. Whether influencing the political agenda or an attempt just to move past an implacably hostile one. Strategic litigation very often challenges accepted norms and sets for the first time the applicable law. While strategic litigation may well encompass test case litigation, plainly not all test case litigation is part of a wider strategy.
Mine. Necessity, rather than vanity. Based around the core notion of improved societal fairness and cohesion. Always including a strong element of testing. Both myself and eager colleagues as to area of law and some terrible odds. Often with overtly hostile opposing teams’ members. First, and covered in earlier issues of this magazine, habeas corpus in respect of detained illegal entrants into TCI in October 2019 from Sri Lanka. They were left marooned first by a focus to convict the people smuggler that left by COVID-19 and the prolonged lockdowns that era brought. Involvement of the UNHCR and the Court of Appeal later, by August 2020 my clients and their compatriots were released. Next, claims for false imprisonment, which required litigation to ‘bless’ a conditional fee agreement that made those follow-on proceedings viable. The fact that those proceedings were won, with damages awarded and then too similar proceedings, will hopefully avoid a similar experience for any other illegal arrival into TCI.
After that, multiple successful asylum claims. Either at the level of Minister or on appeal to the TCI Governor. So far, as they say, so simple. But despite so many asylum grantees between October 2022 and June 2023 there is still no way of exercising travel rights protected under the TCI Constitution. The absence of travel documents being attributed to the British government and that issue still being before the courts.
Courts at a senior legal have emphasised the benefits of campaigning organisations bringing strategic litigation as distinct from individual complaints (see, for example, A Local Authority [2021] UKSC 52, [2022] AC 1322 at [8] (Lord Stephens). But what about the jurisdictions where no such organisations exist? The reasoning in support of their involvement reflects resources, expertise and institutional knowledge. Or in the context of the TCI, me and my colleagues at the firm that I jointly founded. Another rationale for preferring campaigning organisations to individual litigants is the greater willingness, it is said, for such organisations to settle cases. Never a dilemma in the TCI, where no ‘intimated’ claims with which I have been involved have ever been so much as discussed with government lawyers. Not for lack of effort on our part. Far less any compromise reached.
Of course, strategic litigation is not the sole domain of campaigning organisation in larger jurisdictions. Sometimes public bodies have a relevant mandate (such as the Disability Rights Commission: R (A and others) v East Sussex CC [2002] EWHC 2771 (Admin)). At least for now, in the TCI context, the Human Rights Commission is prevented by express effect of its founding statute from participating in a complaint that then becomes litigation (s 14(2)(a) of the Human Rights Commission Ordinance). As Gina Miller demonstrated in respect of Brexit (R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5, [2018] AC 61] in arguably the highest profile strategic litigation of at least the last ten years, individual litigants can and do have a tremendous impact. But those are much harder to find within populations so much smaller.
For a lawyer with the type of strategy (such as it is) outlined above, the advantage of the TCI relative to larger jurisdictions is the substantial and continuing unmet demand from litigants with the types of claims that fit the strategy. Add to that a rapidly growing and diverse population with a disproportionately small electorate resistant to change. That fact pattern led to successful judicial review proceedings in respect of refused Islander Status applications for a total of as many as 35 expatriate litigants.
There is obviously little that can be done for subsequent applicants for such status about legislative changes introduced in the aftermath of the final hearing. But at least the successful outcome of the proceedings themselves has ensured reconsideration of the clients’ rejected applications. This reconsideration in accordance with the original (unamended) legislation. Just as important in the strategic sense is the environment of accountability that demonstrates to the decision makers.
Incremental, yes. But objective and tangible progress nonetheless.
Same-sex marriage issues across the Caribbean in the aftermath of the Privy Council decisions of March 2022 in respect of Bermuda and the Cayman Island (Attorney General for Bermuda v Roderick Ferguson [2022] UKPC 5 and Chantelle Day and another v The Governor of the Cayman Islands [2022] UKPC 6 respectively) have been covered extensively in this magazine (my article ‘Same-sex marriage in the Caribbean: winds of change?’, Counsel, April 2022, and ‘Same-sex marriage in Bermuda and pro bono’, Anna Hoffmann, Dr Leonardo Raznovich and Alex Potts KC, Counsel, June 2024). The wider strategy across many jurisdictions and at many court levels is detailed in the second of those articles. Activity at the level of the European Court of Human Rights involves the well known Cayman-based campaigning organisation Colours Caribbean, which is also appearing as an interested party in the pending (hearing scheduled for late October 2024) TCI appeal of Haymon (Haymon and Sankar v Director of Immigration and AC [2024] TCASC 14). Missing from the outcome in favour of the TCI couple was a declaration as to breach of the freestanding constitutional protection to equality before the law (one of three breaches for which declarations were sought, the other two were obtained). Also missing from the decision and sought in the appeal is an actual solution by way of changes to legislation declared to breach constitutionally protected rights. Every aspect of the couple’s victory at first instance is challenged in the cross-appeal. So, the stakes remain high.
Involvement by lawyers in work of this kind can take many forms and can be offered at many stages. It allows a barrister to see a case often from a much earlier (planning) stage. It is jam-packed with the unexpected and bizarre. For example, the routes travelled by some of my habeas corpus (then asylum) clients beggar belief. Their lived experience is both extremely humbling and motivating. It has bittersweet moments, such as a paralegal heading off to the English Bar and my much missed junior ascending to the bench.
Being practical, what I have described above has offered a more managed blend of pro bono/discounted fee work than the referral process of, say, Advocate. Not – at all – to lessen the impact in English litigation of Advocate. The simple point is that until you try and work on any case of this type you will give yourself reduced scope to test your skills in and out of court. At several points since early 2020 I have questioned my initial decision to dive into habeas corpus. But only in the context of being curious about what within me set me off on this course. Whatever it was, I am pleased it happened and proud of the difference for the better that my team and I have made. In some senses it feels as it we are just getting going. Consider for yourself the benefits of similar efforts, in the many places those continue to be needed.
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