The Access to Justice Foundation was established in 2008 by the legal professions’ professional bodies (The Bar Council, Chartered Institute of Legal Executives and The Law Society) with support from the advice sector.
The Foundation supports free legal advice to those most in need by raising and distributing funds to advice agencies and other legal services 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 both legal aid and local authority funding of advice services, 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 legal profession has helped ensure a steady flow of expertise and specialist advice, the pro bono sector has evergrowing 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, seeking pro bono costs for the work you do.
Pro bono costs
Before 2008, legal costs could not be awarded where the winning party was represented for free. The Legal Services Act 2007 changed this. Under section 194 of the act, pro bono costs can now be claimed from the losing party and must be paid to the Access to Justice Foundation.
Pro bono costs are just like normal costs and are applicable for any period in which free legal representation was given, even if only one of the lawyers involved was acting pro bono. The costs are based on what a paying client would recover.
Cost Recovery: an uphill struggle
The system in place for pro bono costs orders helps to provide vital support to the free legal advice sector across the country, but the Foundation can face difficulties in recovering these costs even after they have been ordered by the courts.
Although the general rule is that the party must pay within 14 days of the order, this is not always the case. Private parties do not always pay, which leaves the Foundation having to enlist pro bono enforcement support and, in some cases, pro bono costs lawyers.
In addition to this, the way in which litigation is funded is becoming more complex with a range of funding mechanisms being used at various points in a case. Where pro bono work has also formed a part of this, it can complicate the process of seeking a pro bono costs order.
The result of this is that the Foundation will often have to enlist the help of costs lawyers to clarify the appropriate pro bono costs order to claim and to work with the paying party to agree this.
What you can do
The Access to Justice Foundation needs help to ensure that pro bono costs are requested wherever possible, securing valuable funds for the pro bono sector. When you provide services on a pro bono basis, make sure that the time you’ve given is claimed as a pro bono costs order. Once pro bono costs are agreed, be sure to notify the Foundation at costs@atjf.org.uk and send a copy of the orders.
In addition to this, the Foundation is always in need of costs lawyers who are willing and able to provide their specialist services on a pro bono basis in particularly tricky cases which the Foundation encounters.
You can also help by spreading awareness of this invaluable practice amongst your friends and colleagues who work pro bono.
Claiming pro bono costs: first steps
When acting pro bono, there are a few things you can do from the outset to be sure that your hard work and valuable time can generate valuable funds to support further pro bono work across the country:
- Highlight your ability to claim pro bono costs if you win (this may help to settle the case, as it presents an extra costs risk to the other party).
- Record all the hours you work for free, and file and serve a statement of costs. You don’t have to use the N260 court form, but you should show what the work would have cost a paying client.
- Ask for a pro bono costs order under section 194 of the Legal Services Act 2007 and CPR 46.7.
Suggested wording for pro bono costs orders is as follows:
“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].”
Once you have claimed pro bono costs, inform the Foundation at costs@atjf.org.uk.
