Newsletter – February 2022
Spotlight on… pro bono costs orders
I read Chris Owen’s recent blog (in the CLSB’s newsletter in November 2021) with great interest. In the piece, titled Spotlight on… the benefits of pro bono work, Chris shared an inspiring and informative overview of pro bono work. He outlined many of the benefits to participating in pro bono activity; from professional development and the opportunity to utilise a broad range of skills, to the personal satisfaction you feel witnessing the positive impact that helping those most in need has on their lives.
Our professional responsibilities require us to focus on work-related tasks and supporting our own clients and stakeholders. Pro bono work offers you the opportunity to explore issues outside of your work environment, and perhaps even your comfort zone, and help address escalating unmet legal need. Information like this encourages us all to consider what we can and should do to help.
In addition to the benefits outlined by Chris, I’d welcome the opportunity to remind Costs Lawyers about pro bono costs orders and the added value they can offer to pro bono lawyers, to their clients and to individuals seeking pro bono support in the future.
Pro bono costs orders are just like ordinary costs orders; they can be claimed in civil proceedings where the successful party benefited from free legal advice or representation, whether for all or part of their case.
Pro bono costs orders can help to create a more level playing field. Their very existence encourages negotiation and earlier settlement. Prior to the introduction of pro bono costs orders, in civil proceedings where one side was represented pro bono, the other party had an unfair advantage. They had no significant incentive to negotiate or settle proceedings early because they were aware that if their opponent was successful, there would be no (or limited) exposure to legal costs recovery, due to their opponent having received pro bono assistance. Despite having the benefit of free specialist legal advice, the pro bono recipient was still at a disadvantage from the outset.
We know from experience that, where pro bono costs orders are not mentioned in the early stages of a dispute, parties may be inclined to use an opponent’s pro bono status tactically, most often to the detriment of the pro bono recipient with matters being pursued further and for longer than might ordinarily be expected.
The opportunity to seek a pro bono costs order means the recipient of pro bono advice is placed in a stronger negotiating position and this might result in earlier settlement being reached, perhaps with no pro bono costs order being required. That a matter may come to a satisfactory conclusion earlier is very much a positive outcome for the pro bono client, for the advice sector and the legal system itself, where less time and resources are wasted unnecessarily.
Pro bono costs orders also deliver a wider benefit to the free legal support and advice sector as a whole. Where negotiation fails and civil cases proceed to litigation, pro bono costs orders offer the prospect of generating funds to support future free legal advice. The funds paid under pro bono costs orders are collected from the losing party by The Access to Justice Foundation, as the prescribed charity, and distributed back to legal advice charities to help ensure ongoing provision and early intervention.
In this way, the introduction of pro bono costs orders produced what might be considered a more ‘normal’ result at the end of litigation proceedings, in relation to payment of legal costs by the losing party, while offering access to justice to yet more people. Of course, this ‘normal’ result relies on an application for pro bono costs being made at the appropriate time, and as a matter of course.
I encourage practitioners to familiarise themselves with pro bono costs orders, and to understand and share the benefits of having them as part of the ‘pro bono lawyer toolkit’ from the outset. Further guidance and resources on pro bono costs orders is available on The Access to Justice Foundation website.
Lynne Squires, Development Director, The Access to Justice Foundation