The Access to Justice Foundation was established in 2008 by the Bar Council, Chartered Institute of Legal Executives and the Law Society and helps to provide free legal advice to those most in need by raising and distributing funds to advice agencies throughout the country. The Foundation has provided financial support to numerous important strategic projects and charitable organisations including AdviceUK, the Bar Pro Bono Unit and the Law Centres Federation.
With cuts to the provision of legal aid, we are all aware that there is more pressure than ever on both the legal profession and the pro bono sector. Whilst the generosity of the Bar has helped ensure a steady flow of expertise and specialist advice in Bar Pro Bono Unit cases, as well as through the £30 Initiative which allowed the Unit to handle 30% more cases from the most vulnerable members of society, the pro bono sector has ever growing funding needs. You can help by ensuring that you record any time spent on a case pro bono, and seek pro bono costs for the work you do.
Under section 194 of the Legal Services Act 2007, pro bono costs must be paid to the Access to Justice Foundation. Following their introduction in 2008, pro bono costs orders totalling approximately £380,000 have been awarded. We are keen to raise awareness and encourage more barristers to request pro bono costs orders where applicable in the hope that this will increase the amount of funds we are able to grant back to the advice sector.
Pro bono costs are just like ordinary costs but where one of the parties in a case has had free legal advice. If a civil case is won with pro bono help, pro bono costs can be ordered by the County Court, High Court, Court of Appeal Civil Division and Supreme Court, or be included in settlements. The costs cover any period when free representation was provided and even if only one of the lawyers acted for free. Unpaid pro bono costs can be enforced like a normal costs award, either by the winning party or by the Access to Justice Foundation itself.
The procedure for seeking an order for pro bono costs is the same as seeking a normal costs order. At the successful conclusion of an application, trial or appeal, the pro bono lawyer or litigant in person (if they have received pro bono legal advice on the way) should ask the judge to order costs against the losing party, pursuant to Section 194 of the Act. The order must provide for payment to the Foundation.
Section 194 is supplemented by CPR 44.3C(2), which sets out how the court may determine the amount of pro costs to be awarded. That amount is based on what a paying client would recover. Normal costs can also be recovered for the fee-paying work. Paragraph 10A of the Costs Practice Direction provides that the general rule contained in paragraph 13.2 applies to pro bono cases, namely that the court should make a summary assessment of the costs unless there is good reason not to do so.
We need your help to ensure pro bono costs are requested wherever possible to secure valuable funds for the pro bono sector. The more pro bono cost orders generated, the more funds the Foundation is able to distribute back in to the free legal advice sector to help organisations like the Bar Pro Bono Unit continue their vital work. When you represent a client through the Bar Pro Bono Unit, don’t let the losing party get away without seeking a pro bono costs order under CPR 46.7. When pro bono costs are agreed, please ensure the Foundation is notified at firstname.lastname@example.org and send us a copy of the orders.
If you would like more information, please see the ‘Full guidance and FAQs’ within the Pro Bono Costs section of our website at www.atjf.org.uk/pro-bono-costs-orders. For hard copies of any of our materials, please get in touch via email to email@example.com.