Davina Patel, the Senior Development Officer at the Access to Justice Foundation, writes about pro bono costs orders and how they can help secure access to justice for clients from marginalised communities.

Pro bono costs orders present the unique opportunity to not only help level the playing field for clients, but also help to fund the provision of free legal advice for future pro bono cases. The Immigration Tribunal awarded its first pro bono costs order, and the Legal Services Act 2007 was amended last year to include cost-bearing tribunals.

Emma Daykin, of One Pump Chambers, obtained the order when she represented a young person pro bono in her human rights appeal and pursued a costs application on the basis of the Respondent’s unreasonable defence and conduct of the appeal. The Respondent conceded that she had acted unreasonably in maintaining the decision beyond the point of initial review of the appeal, normally expected to be within six weeks of lodging it.

Emma described the process of applying for a pro bono costs order as ‘easy and straightforward’, and said her client was grateful that the pro bono costs order ‘will go a long way in providing free legal advice to those in a similarly scary situation’.


Difficulties accessing advice

As with so many other legal issues, one of the biggest challenges for the applicant was accessing the legal advice that she so desperately needed. In January 2022, Jane* received a letter from the Home Office refusing her application for leave to reside in the UK. Jane was distraught and ‘did not know how to appeal the decision or even where to begin seeking help and could not afford legal advice’. This difficulty in obtaining legal advice is not uncommon.

Like many marginalised individuals in need of legal advice, Jane also went through weeks of stress, with ‘no sleep and constant anxiety’ as she contacted law firm after law firm without any luck. Eventually a friend of Jane’s, a journalist who had connections in professional immigration, posted a tweet in a final effort to provide Jane with the legal advice that she was entitled to.

Access to justice is a fundamental right and is essential to the rule of law. For rights to be effective, it must be possible for everyone to enforce them. Access to justice covers several rights recognised in human rights law: first, the right to have access to an effective remedy, second, equality before the law, and finally the right to a fair trial.

These rights are protected through international human rights treaties, such as the European Convention on Human Rights as well as under common law. But there is an overwhelming gap between those who can afford a lawyer and cases that are eligible for legal aid. The difficulties that people like Jane face when searching for representation only exemplifies this issue.

Jane is most grateful that the stress and anxiety caused by the challenge of accessing legal advice did not harm her baby during her pregnancy. Her mental health was negatively impacted from the moment the legal issue arose to the moment the case was decided. But she believes ‘it would have been unimaginably worse if not for Emma’s pro bono representation’.  

Jane describes her case as ‘the most traumatising period’ of her life, and believes that without the free legal advice at the right time, the impact of a wrong decision would have had a devasting impact on her life. Without Emma’s help, the legal system would have failed Jane and until advice organisations are sufficiently funded it will continue to fail marginalised individuals who are still experiencing similar situations.


The role of pro bono costs in supporting the ‘Janes’ of today

Attending a court or tribunal hearing is often a daunting experience for clients. But the risk of costs can be a driving factor as to whether opposing counsel decides to fight or settle. Therefore, pro bono costs should also be considered as a litigation tool to encourage settlement. By introducing the possibility of a pro bono costs order to a case as soon as possible, advocates can ensure that pro bono clients have the same bargaining power as their more financially stable opposing party.

Emma speaks to the importance of pro bono costs orders in helping level the playing field as she says she ‘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’. This is a statement that lies at the heart of access to justice. All too often the most marginalised individuals experience legal issues where there is a huge inequality of power, whether that be between a landlord and tenant or employer and employee.

Emma knew to seek a pro bono costs order because of her relationship with Advocate, a charity that finds free legal assistance from volunteer barristers. However, there are many appropriate cases where pro bono costs orders are not being sought. 

In addition, Emma has extensive experience in representing pro bono clients and believes that helping people access the legal system is vital because ‘the withdrawal of legal aid from so many areas has left vulnerable people exposed to plainly unlawful decisions by public bodies. These unlawful decisions carry the most serious consequences, in some cases it is a matter of life and death’. Furthermore, Emma recalls having dealt with ‘many pro bono cases where the issues are straight forward for an experienced lawyer to resolve but would be impossible for a vulnerable lay person to navigate’.

A successful pro bono costs order has a profound impact on pro bono clients. For this reason, Emma urges others to apply for pro bono costs orders where appropriate. She found the judge and the Respondent to be vigilant and keen to ensure that the pro bono costs order was properly processed. In particular, she recalls the judge being meticulous in striving to set the correct precedent for future cases where a judge is presented with a pro bono costs order in a tribunal.


Impact on pro bono work

Pro bono costs have been helping to fund free legal advice across the nation for fifteen years and have provided over £1 million in grants to free legal advice organisations across the UK.

In some cases, frontline organisations have reported that the demand for legal advice has almost doubled, with issues such as debt, housing and employment being particularly prevalent in marginalised communities. Meanwhile, frontline organisations continue to face barriers to providing justice such as language barriers, literacy difficulties and mental health issues.

Moreover, years of inadequate, unstable, and short-term funding means that salaries and working conditions across the charity sector have fallen well behind the public and private sectors. According to research this means that frontline organisations cannot build resilience and struggle to help their staff with the cost-of-living pressures. This consequently reduces the capacity of legal advice charities to support marginalised communities.

Furthermore, the Access to Justice Foundation estimates that the free legal advice sector is facing a £30 million funding gap this year, meaning that the most vulnerable will go without the advice and assistance they need. The Access to Justice Foundation funds advice organisations that work with the most marginalised communities to provide a lifeline of support for individuals seeking advice at some of the lowest points of their lives.


Be part of the picture

In other cases, costs would be a central component, and it follows that pro bono costs orders should be treated in much the same respect as stipulated by CPR 46.7. Making a pro bono costs order is an ‘easy and straightforward’ way to raise funds for pro bono work. Even if a client is only partially represented on a pro bono basis, a pro bono costs order can be made. 

If you would like to be part of the picture please do volunteer, seek pro bono costs orders, donate residual client balances, and get in touch with the Access to Justice Foundation at [email protected] to talk to our Development Team about our fundraising and engagement schemes.

For more information and guidance notes on pro bono costs orders, please visit the Access to Justice Foundation website. If you are a frontline organisation with insights to offer, please also consider contacting us at [email protected] to get involved in making the case for advice, and shaping a future where everyone has access to justice.

Davina works alongside the legal community to encourage fundraising and engagement, and to support frontline advice organisations providing legal services to the most marginalised communities.