Pro bono cost orders - section 194 and unlocking funds for justice

Pro bono cost orders - section 194 and unlocking funds for justice

keyuLaura Cassidy, Fundraising and Development Manager of the Access to Justice Foundation, comments on the importance of pro bono work and why submitting pro bono cost orders are vital.

Access to Justice Foundation - how do we make a difference?

With cuts to the provision of legal aid, there is more pressure than ever on the pro bono sector. That much is common knowledge. What is less well known is quite how much it costs to keep the pro bono sector and its support network of free legal advice agencies (such as Law Centres and Citizens Advice Bureaux) on its feet.

Formed in 2008, The Access to Justice Foundation was established to provide funding for free legal advice.  From paying the lease for a front line agency’s premises, to providing the excellent match-making and case management services undertaken by organisations such as LawWorks and the Bar Pro Bono Unit, a steady income is vital to allow the sector to carry on its work.

Pro bono cost orders – how you can make a difference.

We believe everyone should have access to justice. Pro bono cost orders help to support our vision.

Pro bono costs are like an ordinary award of costs, but where a party had free legal representation. Before 2008 the indemnity principle meant that a party represented by pro bono lawyers could not obtain costs against the other side. The introduction of pro bono costs by section 194 of the Legal Services Act 2007 helps to level the playing field for pro bono assisted parties, whilst in the process creating a source of funding to support the provision of free legal help to those in need. Section 194 enables civil courts to award costs where a party was represented pro bono on broadly the same basis as normal costs. It also allows for pro bono costs to be obtained in a settlement and it is hoped the threat of both these scenarios will help prevent unnecessary litigation and judicial/court time being wasted.

Under section 194 the costs must be paid to the designated charity, the Access to Justice Foundation. The Foundation then distributes the funds to regional Legal Support Trusts, to national pro bono organisations and to strategic projects.

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 at least 24 hours before the final hearing. The order must provide for payment to the Foundation. After securing your pro bono cost, please inform the Foundation (costs@atjf.org.uk).

Pro bono costs may be ordered by a “civil court”, which is defined by Section 194(10) as any county court, the High Court or the civil division of the Court of Appeal. This was extended to the Supreme Court by Section 61 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012.

As the Master of the Rolls has made plain:

it is very important that all members of the judiciary are aware of the fact that costs can be awarded to lawyers appearing pro bono. Without this money the Foundation can support less pro bono work.

Such awards have already been made in cases at all levels, including the Court of Appeal. Raising awareness of pro bono costs amongst the legal profession and members of the judiciary is crucial to ensuring further awards are made so that more funds are available for free legal advice provision for those most in need.

If you would like any more information please do contact us at costs@atjf.org.uk  or visit the Access to Justice Foundation’s website www.atjf.org.uk

The Access to Justice Foundation is a company limited by guarantee (no. 6714178), and a registered charity (no. 1126147). Its offices are at the National Pro Bono Centre, 48 Chancery Lane, London WC2A 1JF and its registered office is at 20-22 Bedford Row, London WC1R 4JS. It is the prescribed charity under section 194 of the Legal Services Act 2007 by order made by the Lord Chancellor.

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