Unlocking the potential of pro bono costs orders

Despite the expansion of the Legal Services Act in 2022 to allow for pro bono costs to be awarded in tribunals, many legal professionals remain unaware of the scheme. Pro bono costs orders are an untapped resource within the legal profession, with unfulfilled potential to help close the funding gap in the legal advice sector. In this article I explain why more lawyers should be seeking these orders.

What is a pro bono costs order?

Pro bono costs orders are available in courts and tribunals (including the immigration and asylum chambers) where a party has been represented on a pro bono basis. These work similarly to normal costs orders except the funds obtained are payable to The Access to Justice Foundation which in turn uses that money to make grants, including to charities offering immigration and asylum advice.

This means that not only are these orders a useful litigation tool, giving pro bono assisted parties bargaining power against privately funded opposing parties, but they channel vital funding to free legal advice organisations across the UK.

Restoring a balance of risk

Pro bono costs orders can level the litigation playing field. Without this tool, it becomes easier for adversarial parties to litigate without a costs risk against pro bono represented parties. Where appropriate, practitioners should make clear that such an order will be sought. Even if costs are ultimately waived or dropped in settlement proposals, pro bono costs orders can be used as a critical litigation tool to help secure the best outcome for clients.

Expanding the use of pro bono costs orders

The first pro bono costs order awarded in a tribunal was in the First-tier Tribunal (Immigration and Asylum Chamber) in 2022 but since then only two further orders have been secured in the immigration and asylum tribunals.

Emma Daykin of One Pump Court Chambers, the pro bono barrister who requested the first order awarded in an immigration tribunal described the process as “easy and straightforward”. Nicholas Ostrowski, of 6 Pump Court, secured two pro bono costs orders while representing an Ethiopian national whose claim for asylum was refused after he arrived in the UK as an unaccompanied young man.

It was important for the pro bono client to understand that they would not receive funds from a pro bono costs settlement. To ease this process, law firms can choose to include reference to pro bono costs orders in their client care or engagement letters.

There is also the concern that opposing parties may exploit the pro bono nature of representation when it comes to addressing costs. Knowing that pro bono advocates have limited resources, some respondents may engage in excessive procedural disputes, betting that pro bono teams lack the capacity to push for detailed costs assessments or hearings. To address this, the National Pro Bono Centre offers a Pro Bono Expert Support Scheme which includes matching costs specialists with pro bono advocates.

Another challenge may arise where multiple barristers or solicitors handle different stages of a case. Efficient record-keeping plays a key role in securing a pro bono costs order, but it can be approached in a straightforward way.

To support your claim, ensure you file a statement of costs before the hearing, showing the pro bono work done and its equivalent cost at normal rates. This aims to help the court use summary assessment. Where the receiving party had pro bono representation for only part of the proceedings, the statement should be divided into different parts to distinguish between pro bono costs and costs for fee paid work.

The impact of pro bono costs funding

Since their introduction in 2008, almost £2 million worth of pro bono costs orders have been awarded to The Access to Justice Foundation. These funds have in turn have been distributed as grants to charities across England and Wales providing vital pro bono legal advice to the most marginalised individuals, communities, and places.

The Access to Justice Foundation’s 2024 Pro Bono Grants programme provided two-year funding to ten organisations focusing on legal support for disabled individuals. It was funded directly from the proceeds of pro bono costs orders.

Asylum Support Appeals Project was granted £50,000 over two years. This small national charity has been working to defend legal rights to food and shelter for people in the asylum system for over 20 years. The funding will help them extend their pro bono scheme by recruiting new volunteers and training all 40 lawyers to give better support to disabled clients.

Despite grants like these there is still a significant shortfall in meeting the demand for advice, a funding gap which has only been exacerbated by the cost-of-living crisis.

For barristers such as Emma Daykin, the motivation for securing pro bono costs is clear: “I cannot stand by and do nothing, so for the sake of a bit of my time, I can help redress the balance of power and fairness.” Nicholas Ostrowski echoes this sentiment, describing his success in the orders as ‘a great thrill’ for himself and his client, knowing that thousands of pounds would be redirected towards access to justice.

The procedure: how to apply for pro bono costs orders

Pro bono costs orders are just like ordinary legal costs but are available where a party received free of charge legal representation provided by a solicitor, advocate or acted as a litigant in person in England and Wales. They are governed by CPR 46.7, and are equivalent to the amount that a private fee-paying client would recover in costs. Even if a client is only partially represented on a pro bono basis, a pro bono costs orders can be made.

For more information and guidance, please visit the Access to Justice Foundation website. This sets out guides, draft orders and template schedules to assist in successful securing pro bono costs orders. If you have secured a costs order, don’t forget to let the foundation know – costs@atjf.org.uk.

Strengthening the use of pro bono costs orders

When lawyers actively seek pro bono costs orders, they maximise the impact of their pro bono work. By embedding this simple process into routine practice, the profession can level the playing field for clients by holding the Home Office to account, while unlocking a vital source of funding for frontline legal advice services. Encouraging colleagues, peers and networks to prioritise pro bono costs orders will help transform this under utilised tool into a standard mechanism for securing access to justice.