Assessing four recent cases, Global Insight considers how the law can be used to promote the public interest, enable access to justice and check corporate power.

Campaign groups, non-governmental organisations (NGOs) and others continue to bring litigation and other legal action to hold powerful organisations to account in the public interest. ‘Litigation will be key in the years to come […] to check the power of corporations worldwide’, says Leonardo Melos, Co-Chair of the IBA Access to Justice and Legal Aid Committee. Regulators and enforcement bodies also have an important role to play. Below, four cases illustrate this in action.

The price of bread

Nationwide class actions in Canada allege the price of packaged bread was fixed over a 14-year period. The actions have been brought against nine companies who either produce or sell bread, with the certified class comprising all those living in Canada since 31 December 2021 who bought bread from one of the retailers in the case.

In July 2024 two of the defendants in the class actions – George Weston and Loblaw – agreed to pay CAD 500m to settle their involvement in the cases. In a statement, Loblaw told Global Insight that it discovered the price-fixing arrangement in 2015 and self-reported, and that it sincerely apologises. Galen G Weston, Chairman of Loblaw and Chairman and Chief Executive Officer of George Weston said that on behalf of the Weston group of companies, ‘we are sorry for the price-fixing behaviour we discovered and self-reported in 2015. This behaviour should never have happened.’

A spokesperson for Metro, another defendant in the class actions, told Global Insight that the company ‘was not a party to any “industry-wide” conspiracy to fix the price of bread, nor did it engage in conduct contrary to the Competition Act. Metro will continue to defend its position against the class actions.’ While the other defendants didn’t respond to Global Insight’s requests for comment, they have also publicly disputed the allegations and denied they were part of such an arrangement.

The settlement agreement Loblaw and George Weston reached in the class actions is one of the largest in Canadian history – few corporates have paid such a large sum to settle a case there.

Robert Johnston, Member of the IBA Class Actions Committee Advisory Board, says class action lawsuits such as this are becoming more common in a number of jurisdictions because ‘the mechanisms are getting better and the funders are getting better’. Johnston, a partner at Johnson Winter & Slattery in Sydney, says there’s been an increase in mass torts and mass product liability claims in particular. The global nature of the products or services we consume significantly increases the number of possible class members in the event of a dispute, making the potential damages larger, in turn meaning class actions are more viable. ‘In one sense you’ve forever had wrongdoing by corporations’, he says, ‘but that has never been brought to account because it’s been too expensive to do so’.

Anne Merminod, Vice Chair of the IBA Class Actions Committee, says that where she practises in Montréal, ‘class action law is a very easy way to achieve the goals of a proceeding. Instead of having a multitude of very small cases, class members can join together, making it easier to pursue shared objectives.’

Compared to regulatory investigations – where compensation isn’t available to consumers – counsel of plaintiffs typically argue that ‘class actions viewed through that lens must be in the public interest because they redistribute money to consumers’, says Emrys Davis, a partner at Bennett Jones in Toronto.

Moreover, the mere threat of class action proceedings can act as a deterrent for poor corporate behaviour because of the potentially large pay-outs involved. Randal Hughes, Competition Agency Liaison Officer of the IBA Antitrust Section, says that exposure to class actions ‘has been over the last ten or 15 years an increasingly important factor’ when businesses develop and implement compliance programmes to try to avoid the risks associated with anti-competitive behaviour. ‘In terms of dollars, the civil exposure is much greater than the criminal exposure’, adds Hughes, who’s co-head of the competition and antitrust practice at Bennett Jones in Toronto.

Laying out the facts on climate

In 2021, environmental campaign group Milieudefensie’s victory at the Hague District Court represented a landmark in what public interest litigation could achieve. The Court ordered Shell to reduce its CO2 emissions by 45 per cent relative to 2019 levels by 2030. The order applied to emissions across the Shell group, its suppliers and its customers.

However, in late 2024, Shell successfully appealed the judgment. The Hague Court of Appeal dismissed Milieudefensie’s claims and ordered the claimants to pay Shell’s costs relating to both the first instance and appeal proceedings. ‘We are pleased with the court’s decision, which we believe is the right one for the global energy transition, the Netherlands and our company’, said Shell’s Chief Executive Officer Wael Sawan.

Shell cannot ‘be bound by a 45 per cent reduction standard (or any other percentage) agreed by climate science because this percentage does not apply to every country and every business sector individually’, declared the Court of Appeal in overturning the specific emissions reduction requirement. It also said there was no scientific consensus on a sectoral standard for the oil and gas sector and it couldn’t be established that obliging Shell to reduce its Scope 3 emissions – created by those it’s indirectly responsible for in its value chain – by a certain percentage would be effective in reducing global emissions.

in respect of the company’s own production of oil and gas, the Court considered its claim ineffective because Shell could theoretically reduce its emissions via sales and trading only.

The Court did lay out the fundamental obligations that Shell and similar businesses have in combatting the climate crisis. It ‘determined on the basis of objective factors that Shell has an obligation to counter dangerous climate change’. While it acknowledged that legislators and governments must take action to minimise climate change, it said companies, including Shell, may also have a responsibility to take measures in this area.

The Court of Appeal considered this responsibility in the context of its finding that ‘there can be no doubt that protection from dangerous climate change is a human right’. It said the doctrine of the indirect horizontal effect of human rights – which involves applying fundamental rights when interpreting private law between a company and a person – was an important consideration. With the doctrine in mind, the Court said human rights were decisive for interpreting what can be expected of Shell as a large, international company.

‘The Court of Appeal is of the opinion that companies like Shell, which contribute significantly to the climate problem and have it within their power to contribute to combating it, have an obligation to limit CO2 emissions in order to counter dangerous climate change’, it ruled, even if that obligation isn’t explicitly outlined in national regulations. Such companies, it added, ‘thus have their own responsibility in achieving the targets of the Paris Agreement’ on the climate. Cox says the ruling means large corporations ‘have an additional duty of care to do more in relation to curbing emissions than public law requires from them’.

At the time of writing, Cox said Millieudefensie was considering an appeal to the Dutch Supreme Court. Despite this, Cox says the Court of Appeal ruling ‘is still a very positive [judgment] when looking at it from [the point of view of] establishing legal responsibility for corporations to do their part’. By doing so, the case can be seen as promoting the public interest and checking corporate power.

Nine de Pater, a campaign leader at Milieudefensie, says the case has improved transparency about the responsibility of corporations in both causing and tackling the climate crisis. In court, she says, facts and numbers are laid out publicly. ‘It is suddenly a debate about what companies are actually doing’, she explains, ‘instead of what they say they are doing’.

De Pater says the EU’s Corporate Sustainability Due Diligence Directive (CSDDD) contains many ‘elements that we discussed in the court case […] especially about climate change and a transition plan’. For her, this demonstrates how public interest litigation can influence policymaking even while a case is ongoing. Elements that formed part of the ruling can be helpful to inform other cases, she adds.

‘This case highlights the intersection of corporate accountability and ecological rights, showcasing how public interest litigation can influence corporate practices and promote environmental justice’, says Rosemary Chikwendu, Co-Chair of the IBA Access to Justice Committee.

The power of judicial review

In June 2024, the UK Court of Appeal found that the decision of the UK National Crime Agency (NCA) not to investigate imports of cotton produced in the Xinjiang Uyghur Autonomous Region (XUAR) as offences and/or recoverable property under the UK Proceeds of Crime Act 2002 (POCA) was ‘a clear misdirection in law’.

The judgment came following a judicial review brought by the World Uyghur Congress (WUC), which challenged the NCA’s failure to investigate. The judicial review was initially rejected by the High Court and the WUC appealed against this.

The WUC had presented substantial evidence in relation to allegations of forced labour and human rights abuses in the XUAR to the NCA. It believed the NCA should investigate and prohibit cotton imports from the XUAR using its powers under the UK Foreign Prison-Made Goods Act 1897 and the UK Customs and Excise Management Act 1979. It also wanted the NCA to investigate cotton imports from the XUAR because they could be criminal property under POCA and trading in them could therefore be criminal conduct.

An NCA spokesman told Global Insight that the agency respectfully notes the judgment of the Court of Appeal.

Dearbhla Minogue, a consultant solicitor at Bindmans in London and a senior lawyer at the Global Legal Action Network, represented WUC. She says the Court’s confirmation ‘that goods produced through […] human rights abuses abroad amount to criminal property as long as the person handling them is aware of this’ is important. She says it brings companies that may be benefitting from forced labour much closer to the crimes involved, ‘which is how it should be’.

Minogue adds the judgment has significant implications for businesses with global supply chains because they ‘now cannot turn a blind eye or rely on audits which they know or suspect to be ineffective’. She says businesses will need to consider the potential for private prosecution because ‘their risk is hugely heightened’.

The case promotes the public interest because it ‘has leveraged the system in favour of the public,’ who can feel powerless as consumers, says Minogue. She adds that it checks corporate power by ‘bringing into view the prospect of individual criminal liability’.

Sarah Ellington, Newsletter Officer of the IBA Business Human Rights Committee, says the case has brought into the public domain further information and understanding about the growing evidence of forced labour in the Uyghur region and how that could potentially translate into possible offences under English law and by English corporates as well as the duty to investigate.

Achieving clarity on green claims

In 2022, the UK Competition and Markets Authority (CMA) launched an investigation into ASOS, Boohoo and George at ASDA to assess their fashion ‘green’ claims. Following the investigation, in March, the three brands signed formal agreements setting out that they’d only use accurate and clear green claims. The retailers agreed to change the way they display, describe and promote their green credentials and have committed to rules covering their use of such claims.

A spokesperson for Boohoo told Global Insight the company ‘has been very transparent throughout’ the investigation. They added the regulator ‘has not found Boohoo to have breached any consumer protection law’ and the investigation ‘has therefore not resulted in any legal action being brought against Boohoo’.

ASOS said it had cooperated fully and openly with the CMA. ‘We welcome the CMA’s commitment to ensuring equal standards are applied across the fashion industry to create a level playing field in the best interests of consumers’, it stated. A spokesperson for Asda meanwhile said it had ‘proactively engaged with the CMA throughout this process’ and that the company supports any measures aimed at improving consumer understanding of environmental claims.

CMA Chief Executive Sarah Cardell said the commitments ‘set a benchmark for how fashion retailers should be marketing their products’. The regulator expects the sector ‘to take note and review their own practices’, said Cardell.

‘This is a landmark decision because there’s much [in it] that businesses may not previously have been aware of, or practices that they might have been hesitant to partake in, under the auspices of there not being clear guidance’, says Pauline McCulloch, a director at Burness Paull in Glasgow.

Cecilia Parker Aranha, Director of Consumer Protection at the CMA, believes other fashion retailers will now act differently. The regulator has published the undertakings it secured from the three retailers as well as a compliance guide tailored to the fashion sector. It wants to encourage businesses to comply with consumer law and to make clear how to achieve this. ‘We often find businesses want to comply; they want to be getting it right’, says Parker Aranha. She adds that the regulator is now seeing businesses ‘really taking care to ensure that they have the evidence to back up the claims that they’re making’.

Parker Aranha adds that regulatory action on greenwashing is particularly important because it’s an area where it’s difficult for consumers to spot that they’re being misled. She says there can be an imbalance of information between consumers and businesses and the same wording can be true or false depending on the evidence underpinning it and the context. ‘It’s important to make sure consumers [can] trust that the claims they see are accurate’, says Parker Aranha, and not become disillusioned with green products that genuinely support the energy transition. ‘There’s a risk that if [consumers] start to distrust all green claims they see, they stop trying to make better choices’, she explains.

The investigation, therefore, demonstrates how regulatory action can redress the information imbalance between companies and consumers that Parker Aranha describes. Doing this will maintain confidence in green products and support the transition to a low carbon economy, which is in the public interest.

Precedents and redress

These cases demonstrate the different ways in which legal and regulatory action taken in the public interest can enable access to justice and check corporate power. For example, public interest litigation can have an impact on policymaking or set a precedent for, or simply inspire, similar actions. In that sense, even if the case doesn’t achieve its goal, it can make it easier for future cases to do so.

Public interest litigation can highlight gaps within existing legislation. The judgment in theWUC v NCA case, for example, has exposed issues with the UK’s Proceeds of Crime Act by refuting the widely held interpretation that paying fair value for a product ‘cleanses’ it of criminal liability.

Joanna Fulton, Diversity and Inclusion Officer on the IBA Product Law and Advertising Committee, says regulatory investigations can help private individuals or groups access justice because they ‘will often provide the fuel for [private] litigation by people looking to seek redress’. A public interest case can also prompt further legal action. For example, Minogue says the WUC case is ‘already laying the foundations for a range of POCA-based litigation’.

Awareness of important issues is built, ultimately, and sometimes it’s acknowledged in the courts. In the WUC v NCA case, the Court ‘accepted that there is a diverse, substantial, and growing body of evidence that serious human rights abuses are occurring in the XUAR cotton industry on a large scale’.

Rachael Johnson is a freelance journalist and can be contacted at rachael.editorial@gmail.com