Clawing back pro bono costs

It 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. While the generosity of the Bar has helped ensure a steady flow of expertise and specialist advice in Bar Pro Bono Unit cases, the pro bono sector has ever-growing funding needs.

Following their introduction in 2008, pro bono costs orders totalling approximately £380,000 have been awarded. You can help to increase this amount by ensuring that you record any time spent on a case pro bono, and seek pro bono costs for the work you do.

Pro bono costs

Pro bono costs are just like ordinary costs but where one of the parties 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 should ask the judge to order costs against the losing party. Under s 194 of the Legal Services Act 2007 (LSA 2007), pro bono costs must be paid to the Access to Justice Foundation.

Section 194 of LSA 2007 is supplemented by CPR 44.3C(2), which sets out how the court may determine the amount of pro bono costs to be awarded. That amount is based on what a paying client would recover. Paragraph 10A of the Costs Practice Direction provides that the general rule contained in para 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. When you represent a client pro bono, 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 costs@atjf.org.uk and send us a copy of the orders.

When acting pro bono, don’t forget:

• Highlight your ability to obtain pro bono costs if you win. This may help settle the case, as the other side has a costs risk.
• Make sure you record the hours you have worked, and file and serve a statement of costs. Court form N260 does not need to be used, but you should show what it would have cost a paying client at your normal rates.
• Ask for a pro bono costs order under s 194 of LSA 2007 and CPR 46.7.
• Suggest the following wording for the order: ‘The [party] must pay costs for pro bono representation on or before [date] to The Access to Justice Foundation (PO Box 64162, London WC1A 9AN), [summarily assessed at £____] [or] [to be assessed on the standard / indemnity basis if not agreed].’
• Tell the Foundation when you secure pro bono costs (costs@ATJF.org.uk).

If you would like more information, please see the ‘Full guidance and FAQs’ on our website. For hard copies of any of our materials, please email enquiries@atjf.org.uk. ●

Contributor Elizabeth Alabaster is a volunteer at the Access to Justice Foundation

Susan’s story

Susan was in her 60s and suffering from arthritis and various other age-related health problems. She was becoming increasingly vulnerable and feeling alienated from her community. Susan was unable to prepare food, get dressed, bathe herself or get out and about without help. The Avon & Bristol Law Centre referred her to Bristol City Council Social Services for an assessment. However, the support offered fell well below the minimum required, allowing only a 15-minute visit every morning. The Law Centre used relevant legislation to successfully argue that Susan needed at least double the support initially offered. As a result, Susan secured the support she needed.

This case study was provided by Avon & Bristol Law Centre, which received funding of £3,000 in 2014.