PRO BONO COSTS ORDERS: THE SECTION, GUIDES AND LINKS
I am grateful to Nick Hanning for pointing out one aspect of the judgement in the recent Paratus case that he, rightly, says would benefit from wider publicity. The Court made a Pro Bono Costs order under section 194 of the Legal Services Act 2007
“This case deserves publicity for the reasons given by the Judge but also for another important reason. That is its example of the making of a pro bono costs order.
Pro bono costs orders may be made where a party has received pro bono representation in a civil case and enable the costs which would have been recovered by a fee paying party to be recovered from the other party and paid to the Access to Justice Foundation. The Foundation uses those funds to support the provision of free legal advice in other cases.
Although they were introduced several years ago, there is evidence that knowledge of pro bono costs orders is not fully embedded so it would be valuable for your blog to highlight this too.”
PRO BONO COSTS ORDERS
Section 194 of the Legal Services Act 2007.
194Payments in respect of pro bono representation
(1)This section applies to proceedings in a civil court in which—
(a)a party to the proceedings (“P”) is or was represented by a legal representative (“R”), and
(b)R’s representation of P is or was provided free of charge, in whole or in part.
(2)This section applies to such proceedings even if P is or was also represented by a legal representative not acting free of charge.
(3)The court may order any person to make a payment to the prescribed charity in respect of R’s representation of P (or, if only part of R’s representation of P was provided free of charge, in respect of that part).
(4)In considering whether to make such an order and the terms of such an order, the court must have regard to—
(a)whether, had R’s representation of P not been provided free of charge, it would have ordered the person to make a payment to P in respect of the costs payable to R by P in respect of that representation, and
(b)if it would, what the terms of the order would have been.
(5)The court may not make an order under subsection (3) against a person represented in the proceedings if the person’s representation was at all times within subsection (6).
(6)Representation is within this subsection if it is—
(a)provided by a legal representative acting free of charge, or
(b)funded by the Legal Services Commission as part of the Community Legal Service.
(7)Rules of court may make further provision as to the making of orders under subsection (3), and may in particular—
(a)provide that such orders may not be made in civil proceedings of a description specified in the rules;
(b)make provision about the procedure to be followed in relation to such orders;
(c)specify matters (in addition to those mentioned in subsection (4)) to which the court must have regard in deciding whether to make such an order, and the terms of any order.
(8)“The prescribed charity” means the charity prescribed by order made by the Lord Chancellor.
(9)An order under subsection (8) may only prescribe a charity which—
(a)is registered in accordance with section 3A of the Charities Act 1993 (c. 10), and
(b)provides financial support to persons who provide, or organise or facilitate the provision of, legal advice or assistance (by way of representation or otherwise) which is free of charge.
(10)In this section—
“legal representative”, in relation to a party to proceedings, means a person exercising a right of audience or conducting litigation on the party’s behalf;
“civil court” means the civil division of the Court of Appeal, the High Court, or any county court;
“free of charge” means otherwise than for or in expectation of fee, gain or reward.
(11)The court may not make an order under subsection (3) in respect of representation if (or to the extent that) it is provided before this section comes into force.
- LawWorks on Section 194
- The Access to Justice Foundation “How to” Guide
- The Bar Pro Bono guide
- The Access to Justice Foundation Frequently asked questions
- The Law Society Gazette on the New Procedure for Pro Bono Costs Orders
Thanks so much Gordon, very much appreciated.
As a footnote, it is worth mentioning that about the only good thing to come out of LASPO was an amendment extending pro bono costs orders to the Supreme Court.
See also CPR 46.7!
The Access to Justice Foundation suggests the following wording:
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].
And has advice for advocates here: http://www.accesstojusticefoundation.org.uk/downloads/Advocates_guide_Pro_Bono_Costs.pdf
From my experience, an N260 filled in ‘as if’ you were charging is helpful, or for those acting on a pro bono basis through the Bar Pro Bono Unit or on public access, judges tend to like to have a fee note from chambers.