The Access to Justice Foundation Pro Bono Costs and the Advice Sector  

The Access to Justice Foundation Funding the provision of free legal help for those most in need Established in 2008 by the legal profession and advice sector Our aim is to improve access to justice by raising funds and distributing them to organisations that support those who need legal help but cannot afford it We work closely with the advice and pro bono sector and take a strategic approach to the distribution of funding We work with 8 Legal Support Trusts across England, Wales and Scotland to target resources where they are needed most

Pro bono costs: overview Just like ordinary costs but where a party had free legal help Up to 50% of amounts recovered will go back to the agency responsible Pro bono costs are just like ordinary legal costs, but where a party had free legal representation. If you, your lawyers or your volunteers provide free representation for a client, you can ask the court to award pro bono costs. Under the legislation pro bono costs have to be paid to the Access to Justice Foundation. Our trustees have decided that 50% of amounts recovered will go back to the agency (ie Law Clincs) responsible for obtaining them. The other 50% will go into our general funds for distribution to agencies providing free legal help. This ensures we retain a strategic focus. Pro Bono Costs

Pro bono costs: funding Figures: Around 30 pro bono costs orders in 2015 with a value over £124,413 (increase of £20,000 since 2014) 24 orders so far in 2016 with a value of £135,000 Against an increasing numbers of public bodies Increasing use by the advice sector I am confident that there is much more successful pro bono work being done than these figures suggest and increasing these figures can work to the benefit of the sector in general and your organisations in particular. The funds we receive are distributed by way of grants to advice and pro bono organisations More frequently, we are obtaining more cost orders against public bodies which discourages bad behaviour, making the system fairer, which is at the heart of pro bono work. More and more orders being obtained by advice organisations– they can also be used to the advantage of the organization and I will come on to that… 1. Before Oct 2008 the indemnity principle meant that a party represented by pro bono lawyers could not obtain costs against the other side. Pro bono costs were introduced for these reasons (press side).

Pro bono costs: the benefits Raises funds for advice sector Encourages Settlement Benefits of Pro Bono Costs Shows the inherent value of pro bono Levels the Playing Field 1. Before Oct 2008 the indemnity principle meant that a party represented by pro bono lawyers could not obtain costs against the other side. Pro bono costs were introduced for these reasons. 2. Explain diagram

Pro bono costs: the detail Section 194, Legal Services Act 2007 Civil Procedure Rule 46.7 & PD 44-47 Free legal representation Value of the work We enforce the orders through Section 194 Legal Services Act 2008, which states The Access to Justice Foundation is the prescribed charity to receive pro bono costs. This is extended to the Supreme court through Section 61 LASPO. (item 2 on handout see how it looks) Civil Procedure Rules as stated here, effectively provides that the normal costs provisions apply to pro bono costs Applies even if helped for only part of the case or there was mixture of pro bono and paid representation. Pro bono costs reflect the financial value of the free legal help provided the amount is based on what a paying client would recover, not legal aid rates. The costs cover any period when free representation was provided and even if only one of the lawyers acted for free (i.e. normal costs can also be sought for the fee-paid work). Any legal work done for free- even if it is just an hour of supervision it is worth claiming NOT just representation at court – ie all work in the course of litigation (confirmed in the court of appeal). A legal representative is a lawyer who has been instructed to act for a party in relation to proceedings (CPR definition) Based on what a normal fee paying lawyer would charge – if unsure can use the guideline hourly rates Not if the other side had legal aid or pro bono for the whole time. In deciding whether to make an order and on what terms, the court must have regard to what order it would have made if the party applying for the order had not been represented pro bono and you can see that the Judicary is in favour by looking at Lord Justice Rymer’s excerpt on your handout. Time recording Available in civil cases: County Court, High Court, Court of Appeal civil division and now Supreme Court (April 2013). can award pro bono costs broadly where they would award normal costs. Pro bono costs are not available in Tribunals – would require a change in the legislation Civil Courts, not Tribunals

Pro bono costs: procedure Consider applicability of pro bono costs Ask the judge to make an order Notify the Foundation Costs budgets Schedule of costs The procedure for seeking an order for pro bono costs is the same as seeking a normal costs order 1. Consider whether pro bono costs apply – any work done for free 2. Costs budgets apply – where the other party and court would usually be informed of estimates of normal costs, they should be informed of the estimated pro bono costs 3. In advance of the hearing file with the court and serve on the other parties a statement of costs showing what free work was done and how much it would have cost at normal rates This follows the normal rule in PD44 and aims to help the court use summary assessment No VAT payable Court form N260 does not need to be used but may be convenient. The indemnity principle declaration on the final page is not applicable 4. At the successful conclusion of an application, trial or appeal the lawyer or litigant should ask the judge to order pro bono costs against the losing party pursuant to section 194 of the Legal Services Act and CPR 46.7 The Order must provide for payment to the Access to Justice Foundation The amount may be decided by summary or detailed assessment as with ordinary costs If a costs order is deemed in favour of a pro bono party, they may apply for an order for probono costs 5. Notify the Foundation enquiries@atjf.org.uk confirming you wish to make a distribution preference (if you don’t make a dist pref we will try to remind you)

Pro bono costs: the order 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]. Suggested wording – back of pro – bono passport booklet Hand out examples of Cost Orders and Case Studies

Pro Bono Passport Encourge Lawyers and litigant in person to record their time. £19 per hour for Litigant and pro-bono costs for lawyers. Simple form. Questions?

Pro bono costs: things to consider Merits of the case Adverse costs risk Alongside CFA/legal aid work Time recording Recovery of costs Detailed assessment Areas of law: immigration, judicial review, housing Funding for new work Think about the Merits of the Case Adverse cost risk – is it more of a risk than its worth? CFA – work along side No win no fee/legal aid work (pro bono passport) – be thorough in your time recording Pilot new schemes in Law Clinics via ATJF grant which can fund themselves eventually through pro bono cost orders

Pro bono costs: how we can help General queries Specialist costs lawyers Funding Materials Templates Questions?

The Access to Justice Foundation Ruth Daniel Chief Executive The Access to Justice Foundation www.accesstojusticefoundation.org.uk enquiries@atjf.org.uk Twitter @Access2JusticeF 020 7092 3973 Thank You, Questions, Contact Details- in delegate pack