The need for free legal advice has been growing exponentially since the pandemic and the continuing cost-of-living crisis, with some advice organisations reporting a doubling in the demand for their services.

According to the Legal Needs Survey 2023, 66% of people have experienced at least one legal issue in the last four years. Almost half all those seeking advice report being disabled.

Facing a legal issue can be the most stressful and anxiety filled time of someone’s life. If you do not have the means to pay for, or have access to, good quality free legal advice and have a disability, this stress is magnified.

Ryan Turner of Maitland Chambers says: ‘It can be very difficult for a litigant in person to understand court processes and to prepare the necessary documents and bundles for a hearing.

‘Therefore, quality pro bono services are essential in helping people to navigate the legal system and deal with their legal issues.’

Funds gained through pro bono costs orders

The Access to Justice Foundation was established by the Bar Council, Advice Services Alliance, CILEX and The Law Society to be the recipient of pro bono costs orders. We use the funding from the costs orders and other sources to award grants to advice organisations providing free legal advice to the most marginalised individuals, communities and places.

As a result of funds gained through pro bono costs orders alone, more than £1 million in grants has gone to provide pro bono services to those that need it most.

Our latest grants round – funded primarily from pro bono costs orders – was focused mainly on those offering pro bono provision for disabled people. We will announce the recipients of these awards in October 2024.

Thanks to additional fundraising in the last two years, over £13 million has been awarded to increase resource for those facing social welfare issues such as housing, debt and immigration.

Liz Chahal, CEO of the Leicester Community Advice and Law Centre says: ‘The Access to Justice Foundation has a unique recognition that organisations need a stable infrastructure to deliver support and build innovative partnerships to help those that need it most.’

However, as the only national charity solely focused on funding free legal advice across the UK, the demand consistently outstrips the funds available.

How barristers can help

The Access to Justice Foundation welcomes the support of the legal community to continue to make the case and raise funds to move towards a society where everyone has access to justice.

Better, more consistent application of pro bono costs orders by those offering free legal representation can lead to more funding for free legal advice.

Pro bono costs orders are just like ordinary legal costs but are available where a party received free of charge legal representation provided by a solicitor, advocate or acted as a litigant in person in England and Wales.

If a civil case is won with pro bono help, pro bono costs can be ordered by the court or tribunal or included in settlements. Pro bono costs cover any period when free of charge representation was provided, and the amount is based on what a paying client would recover.

Unlike ordinary costs, pro bono costs are, by statute, payable to the prescribed charity, the Access to Justice Foundation. The Foundation then uses the funds to increase free legal advice to those in need.

How to apply for pro bono costs

The Access to Justice Foundation offers guidance on how to apply for pro bono costs orders.

If you are working on a case pro bono, you can apply for pro bono costs orders using the following steps:

  1. In correspondence and negotiation with the other side, consider highlighting your ability to obtain pro bono costs if you win. This may help settle the case, as they also have an adverse costs risk.
  2. A settlement agreement or consent order can include the other side paying pro bono costs to the Access to Justice Foundation. Also, claimants accepting a Part 36 offer can apply for a pro bono costs order.
  3. Before a hearing, file and serve a statement of costs, showing how much free work you did and its equivalent cost at your normal hourly rate or brief fee. Use our schedule of costs template, or adapt Form N260 (on page 4 cross out the paragraph that starts ‘The costs stated above…’). VAT should not be included.
  4. If you win your hearing, at the usual time when costs would normally be considered, seek pro bono costs. Ask the court to summarily assess how much it would have awarded in ordinary costs had you not been acting for free, and to order the same amount in pro bono costs (as for example the CA did in Grand v Gill [2011] EWCA Civ 554 at [29]). The suggested wording is:

The [party] must pay costs for pro bono representation on or before [date] to the Access to Justice Foundation (The Access to Justice Foundation, 7 Bell Yard, WC2A 2JR), [summarily assessed at £_____ [or] [to be assessed on the standard/indemnity basis if not agreed].

5. Notify the Access to Justice Foundation if you secure pro bono costs by emailing costs@atjf.org.uk. Please provide a copy of the sealed costs order and contact details of the payor.

Emma Daykin of One Pump Court Chambers says ‘making a pro bono costs order was easy and straightforward’.

The role of pro bono costs in access to justice

Funds gained through pro bono costs orders have already had an impact on the advice sector but more remains to be done.

As well as funding, pro bono costs help level the playing field, by ensuring that there are equal adverse costs risks for all parties, even when facing a pro bono assisted party. This can help encourage reasonable litigation, conduct and settlement.

If you are interested in helping to pave the way for a society where everyone has access to justice, get in touch at costs@atjf.org.uk or visit our website.