Since their introduction in 2008, pro bono costs orders totalling over £500,000 have been awarded. Not only does this help level the playing field for pro bono assisted parties, by preventing the losing party escaping an order for costs, but also channels vital funds to support the provision of free legal assistance to those in need. Prior to this, legal costs could not be awarded in cases where the winning party was represented for free.
The Access to Justice Foundation is the prescribed charity that receives pro bono costs, under s 194 of the Legal Services Act 2007. Established by the Law Society, Bar Council, CILEx and Advice Services Alliance, the Foundation distributes the money to agencies and projects that help disadvantaged people exercise their legal rights. Here is just a small selection of grants we have made:
- Coram Children’s Legal Centre – staffing for Child Law Action Line, a free legal advice service for children’s issues.
- Prisoners Advice Service – running outreach clinics, developing self-help kits and training prisoners to become peer advisers.
- Shelter Cymru – increasing access to housing advice through a dedicated webcam housing advice service.
Although we made over 80 grants last year, we have to turn down many more worthy applications due to lack of funds. Barristers can help to increase our funds by ensuring that you record any time spent on a case pro bono, and seek pro bono costs for the work you do.
How to seek pro bono costs
The Foundation relies on the support of the legal profession and we work closely with the Bar Pro Bono Unit to ensure that costs are recovered wherever possible. The procedure for seeking pro bono costs is the same as seeking an ordinary 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. Front line agencies responsible for obtaining pro bono costs can expect to receive up to 50% of the costs recovered.
The Foundation aims to make applying for pro bono costs as easy as possible (see atjf.org.uk). Resources include:
- a quick guide (available at bit.ly/2yRQCVQ) setting out the steps in the process;
- a more detailed FAQ on suggested wording for engagement letters, draft orders and statement of costs and the process for once an order has been made; and
- the templates you will need.
Pro bono champion support
The Foundation can also put you in touch with one of our pro bono champions if you would like support from a fellow barrister who has previously been successful in obtaining an order.
One such champion is Conall Patton, a commercial barrister at One Essex Court, who was instructed through the Bar Pro Bono Unit for the claimant in a dispute arising from the sale of a recycling business. The case went to a two-day trial in the Oxford County Court but settled after the close of evidence. The consent order included a pro bono costs award of £10,000 in favour of the Foundation.
Patton comments: ‘My client was a litigant-in-person facing a well-resourced opponent and a potentially ruinous liability in costs if he lost at trial. The availability of a pro bono costs award helped restore some balance. Within a week after my instruction, we made a Part 36 offer which highlighted the fact that a potential pro bono costs liability would start to accrue. From that point onwards, the other side had something to lose from continuing to fight the case. When the evidence didn’t go their way, the Part 36 offer formed the basis for the settlement, with the usual costs consequences.
‘For me, knowing that the costs order would help fund other deserving cases only added to the personal and professional satisfaction that comes from pro bono work. More importantly, the client was over the moon about it: he had really wanted to demonstrate his gratitude to the Unit for its assistance, and the pro bono costs award was the perfect way of doing so.’
Matching service: ProBono Connect
The Foundation also works closely with ProBono Connect, a scheme launched in September 2015 which matches barristers and solicitors working pro bono on a range of civil matters. The scheme enables any barrister from a participating chambers doing a pro bono case to request assistance from a participating solicitor (and vice versa).
Barrister Jamie Goldsmith, founder of ProBono Connect and also a pro bono champion, explains: ‘Two heads are better than one. Byenabling barristers and solicitors to work together, we make it more efficient and effective to do pro bono cases. That means more people can do pro bono work, more clients get the help they need and more pro bono costs orders can be obtained, which enables the Access to Justice Foundation to provide much needed support to the wider pro bono community.’
LAW CENTRES and the UK’s BOTTOM LINE
It is estimated that law centres alone deliver the following gross outputs and outcomes (ICF International, Funding for law centres, 2014):
- Between £446.5m and £519.5m in direct cost savings as a consequence of reducing the annual costs associated with debt and temporary accommodation.
- Approximately £450.6m in indirect cost savings as a consequence of reducing ‘downstream’ or ‘spillover’ costs associated with homelessness, stress, anxiety and ill health.
- £99.8m in additional tax revenues to the Exchequer as employment is created and/or safeguarded.
Supporting the foundation: We are always happy to hear from potential supporters. Please email email@example.com to discuss any aspect of the Foundation’s work, how to get in touch with pro bono champions and other ways in which you can support us. More details of the ProBono Connect scheme, including how to join, can be found at: probonoconnect.co.uk. For any queries about the scheme, please email: firstname.lastname@example.org