COST BITES 3: PRO BONO COSTS ORDERS EXTENDED TO TRIBUNALS
Pro bono cost orders have been extended to tribunals. The position is explained in a short post by the Access to Justice Foundation.
The ability to make such orders has been extended to tribunals.
GUIDANCE FROM THE ACCESS TO JUSTICE FOUNDATION
“Pro Bono Costs in Tribunals – introduced June 2022
S.194A of the Legal Services Act 2007 came into force on 28 June 2022, enabling UK tribunals to award pro bono costs. This mirrored the existing s. 194 of the 2007 Act which provides for pro bono costs in the civil courts of England and Wales.
As a result, Pro bono costs are available in proceedings before the First-tier Tribunal, the Upper Tribunal, the employment tribunal, the Employment Appeal Tribunal, and the Competition Appeal Tribunal.
The key condition is that the tribunal would have had the power to award ordinary costs, had the representation been provided on a paid basis. For example, for unreasonable conduct. (Accordingly pro bono costs are not available in the Social Entitlement and War Pensions and Armed Forces Compensation chambers of the First Tier Tribunal).”
AN EARLIER POST ON PRO BONO COSTS ORDERS
I wrote about pro-bono costs orders several years ago as a result of an email from Nick Hanning about the Paratus case. Nick pointed out that one aspect of that case 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.”
THE NEW SECTION 194A
“194A Payments in respect of pro bono representation: tribunals
(1)This section applies to relevant tribunal proceedings 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 tribunal may make an order under this section against a person if the condition in subsection (5) is met in respect of that person (and if subsection (7) does not apply).
(4)An order under this section is an order for the 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).
(5)The condition is that, had R’s representation of P not been provided free of charge, the tribunal would have had the power to order the person to make a payment to P in respect of sums payable to R by P in respect of that representation.
(6)In considering whether to make an order under this section against a person, and the terms of such an order, the tribunal must have regard to—
(a)whether, had R’s representation of P not been provided free of charge, it would have made an order against that person as described in subsection (5), and
(b)if it would, what the terms of the order would have been.
(7)The tribunal may not make an order under this section against a person represented in the proceedings if the person’s representation was at all times within subsection (8).
(8)Representation is within this subsection if it is provided—
(a)by a legal representative acting free of charge, or
(b)by way of legal aid.
(9)For the purposes of subsection (8)(b), representation is provided by way of legal aid if it is—
(a)provided under arrangements made for the purposes of Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012,
(b)made available under Part 2 or 3 of the Legal Aid (Scotland) Act 1986, or
(c)funded under Part 2 of the Access to Justice (Northern Ireland) Order 2003 (S.I. 2003/435 (N.I. 10)).
(10)Procedure rules may make further provision as to the making of orders under this section, and may in particular—
(a)provide that such orders may not be made in 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 (6)) to which the tribunal must have regard in deciding whether to make such an order, and the terms of any order.
(11)In this section “relevant tribunal proceedings” means proceedings in—
(a)the First-tier Tribunal,
(b)the Upper Tribunal,
(c)an employment tribunal,
(d)the Employment Appeal Tribunal, or
(e)the Competition Appeal Tribunal,
but does not include proceedings within devolved competence.
(12)For the purposes of subsection (11), proceedings are within devolved competence if provision regulating the procedure to be followed in those proceedings could be made by—
(a)an Act of the Scottish Parliament,
(b)an Act of Senedd Cymru (including one passed with the consent of a Minister of the Crown within the meaning of section 158(1) of the Government of Wales Act 2006), or
(c)an Act of the Northern Ireland Assembly the Bill for which would not require the consent of the Secretary of State.
(13)The Lord Chancellor may by regulations—
(a)amend subsection (11) so as to add a tribunal to the list in that subsection, and
(b)make consequential amendments of the definition of “procedure rules” in subsection (14).
(14)In this section—
“free of charge” means otherwise than for or in expectation of fee, gain or reward;
“legal representative” means a person who is—(a)
entitled in accordance with section 13 to carry on the activity of exercising a right of audience or conducting litigation,(b)
a solicitor enrolled in the roll of solicitors kept under section 7 of the Solicitors (Scotland) Act 1980,(c)
a member of the Faculty of Advocates in Scotland,(d)
a person having a right to conduct litigation, or a right of audience, by virtue of section 27 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990,(e)
a member of the Bar of Northern Ireland, or(f)
a solicitor of the Court of Judicature of Northern Ireland,
irrespective of the capacity in which the person is acting in the proceedings concerned;
“prescribed charity” means the charity prescribed under section 194C;
“procedure rules” means—(a)
Tribunal Procedure Rules, in relation to proceedings in the First-tier Tribunal or the Upper Tribunal,(b)
Employment Tribunal Procedure Rules, in relation to proceedings in an employment tribunal or the Employment Appeal Tribunal, or(c)
rules under section 15 of the Enterprise Act 2002, in relation to proceedings in the Competition Appeal Tribunal;
“tribunal” does not include an ordinary court of law.
(15)An order under this section may not be made in respect of representation if (or to the extent that) it was provided before section 48 of the Judicial Review and Courts Act 2022 came into force.]