Pro bono cost orders

Section 194 of the Legal Services Act 2007 provides for ‘pro bono costs orders’. They are broadly equivalent to normal costs orders, and are available when the ‘winning’ party is represented wholly or partly pro bono (free of charge).

The ‘losing’ party is ordered by the court to make a payment in an amount equivalent to legal costs to The Access to Justice Foundation. This money is in turn used to support legal advice charities in their provision of pro bono legal advice services.

Amendments were made to the Civil Procedure Rules and to Practice Directions to support section 194. Previously the losing party would otherwise escape liability for costs simply because the winning party had been helped pro bono.

Section 194 orders are available at the same time and the same way as normal costs orders, and in the county court, High Court and Court of Appeal. They can also be included in settlements and agreed orders.

Points to note:

  • The court will require information to help assess what the legal costs would have been had the representation not been free. The usual costs procedures should be followed, so when seeking summary assessment the pro bono assisted party should file and serve a statement of ‘costs’ (e.g. using Form N260).
  • The court may use summary assessment (which as with normal costs should be used unless there is a good reason not to), or may order detailed assessment.
  • It is not possible to get a Section 194 order where the ‘losing’ party was at all times also represented pro bono, or under legal aid.
  • Special care is needed where a case may have further stages such as a trial or appeal, as normal costs cannot be set off against Section 194 sums, and payments are not returnable in the event of a subsequent adverse costs order. Courts may therefore be asked to reserve costs with a liberty to apply (perhaps with a note on the court file indicating what Section 194 order it would have otherwise made).  The court conducting the final hearing can then be invited to make a single order, one way or the other, reflecting the justice of the case overall including interlocutory successes or failures.
  • Section 194 does not affect the potential liability of a pro bono assisted party to an adverse costs order.

Pro bono assistance provides access to justice for someone who cannot afford to pay for legal assistance and cannot get legal aid. Where the case is won, obtaining a section 194 order may help others in a like position gain access to justice in other cases.