Pro bono costs orders FAQs

We have drafted information and guidance on frequently asked questions about pro bono costs orders below. If you’re question is not answered there, please do get in touch with us at costs@atjf.org.uk.

Rules and Procedures

  • Section 194 of the Legal Services Act 2007 applies to pro bono costs in the County Court, Family Court, High Court and Court of Appeal Civil Division.
  • Section 194A applies to Tribunals.
  • Section 194B applies to civil appeals before the Supreme Court.
  • Regarding the County Court through to the Court of Appeal, see CPR rule 7 and para 4.1 of Practice Direction 46.
  • CPR 46.7(4) effectively provides that the normal costs provisions in CPR parts 44 to 47 apply to pro bono costs, with certain modifications.
  • In the Supreme Court, see para 5 of Practice Direction 13.
  • For Tribunals, at present there are no specific rules, so it is suggested that as far as possible the same procedure for normal costs is followed according to that Tribunal’s rules.

CPR rule 46.7(2) requires that the order specify that the payment by the paying party must be made to the prescribed charity, The Access to Justice Foundation.

The order for pro bono costs is made within the main court order, just like any normal costs order.

The suggested wording for the order is:

The [party] must pay costs for pro bono representation on or before [date] to The Access to Justice Foundation (7 Bell Yard, London WC2A 2JR), [summarily assessed at £____       ] [or] [to be assessed on the standard / indemnity basis if not agreed].

For a detailed guide on how to apply for pro bono costs orders, please refer to our guidance notes.

If a costs order is deemed in favour of a pro bono party, they may apply for an order for pro bono costs, see CPR rule 44.9.

The right of deemed costs arises (unless a court orders otherwise) under:

  • CPR rule 3.7 – defendant’s right to costs where claim struck out for non-payment of fees.
  • CPR rules 36.13(1) and (2) – claimant’s entitlement to costs where a Part 36 offer is accepted.
  • CPR rules 38.6 – defendant’s right to costs where claimant

In partly discontinued proceedings, CPR rule 38.8(2) allows a court to stay the remainder of the proceedings until the claimant pays the pro bono costs that were ordered.

The procedure for seeking an order for pro bono costs is the same as seeking a normal costs order. The advocate asks the judge at the same point in time. Alternatively, the order for pro bono costs can be agreed between the parties.

Therefore, at the successful conclusion of an application, trial or appeal, the pro bono lawyer should ask the judge to order pro bono costs against the losing party, pursuant to Section 194 of the Legal Services Act 2007 and CPR rule 46.7 (for the County Court, High Court and Court of Appeal).

Yes. In advance of the hearing, the pro bono lawyer must file with the court and serve on the other parties a statement of costs showing what pro bono work was done and how much it would have cost at normal rates. See para 4.1 of Practice Direction 46. This aims to help the court use summary assessment. Use the schedule of costs template, or create your own schedule, or adapt Form N260 (cross out the paragraph that starts “The costs stated above…” on page 4).

Any bill of costs prepared for pro bono costs must not include a claim for VAT (paragraph 2.14 Practice Direction 44).

Where the receiving party had pro bono representation for only part of the proceedings, the bill must be divided into different parts to distinguish between the pro bono costs and the normal costs for fee paid work (paragraph 5.8(2) Practice Direction 47).

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.

Where a pro bono party loses, pro bono costs cannot normally be sought against the winning party. This follows the usual rule in civil cases that it is the winning party that obtains costs against the losing party.

The pro bono costs regime does not affect the risk of adverse costs against a pro bono party. Therefore, it continues to be important for legal representatives to advise pro bono clients of the risk of costs being ordered against them if they lose.

Application

Pro bono costs are available in proceedings in the following tribunals:

  • The First-tier Tribunal
    • Health, Education and Social Care Chamber
    • General Regulatory Chamber
    • Tax Chamber
    • Immigration and Asylum Chamber
    • Property Chamber
  • The Upper Tribunal
    • Administrative Appeals Chamber
    • Tax and Chancery Chamber
    • Immigration and Asylum Chamber
    • Lands Chamber
  • The Employment Tribunal
  • The Employment Appeal Tribunal
  • The Competition Appeal Tribunal

The key condition is that the tribunal would have had the power to award ordinary costs, had the representation been provided on a paid basis – for example, for unreasonable conduct. (Accordingly, pro bono costs are not available in the Social Entitlement and War Pensions and Armed Forces Compensation chambers of the First Tier Tribunal).

Pro bono costs may be ordered by a “civil court”, which is defined by Section 194(10) of the Legal Services Act 2007 as the County Court, Family Court, the High Court and the civil division of the Court of Appeal.

In addition, under Section 194B, the Supreme Court can award pro bono costs when dealing with a relevant civil appeal.

Pro bono costs can be included in settlement agreements and agreed orders. This is just like normal legal costs are often included in settlements, except here the costs cover the free representation and are payable to the Access to Justice Foundation under the legislation.

The suggested wording for settlement agreements and agreed orders is:

The [party] shall pay costs for pro bono representation on or before [date] to The Access to Justice Foundation (7 Bell Yard, London WC2A 2JR), in amount of £___.

When pro bono costs are agreed, please ensure the Access to Justice Foundation is notified (costs@atjf.org.uk).

If the pro bono party is the claimant and accepts a Part 36 offer, CPR rule 44.9(3) provides that a pro bono costs order can then be sought from the court or agreed with the other side.

No. You can only apply for pro bono costs orders if you are a litigant in person, legally qualified and representing on a pro bono basis, or you are supervised by someone who is legally qualified (e.g. as a paralegal, trainee etc.).

Yes. It is important that you accurately record and differentiate the time you spent on a matter on a pro bono basis, fee paying basis, and legal aid basis and then apply for the amount applicable to the pro bono work completed on the matter.

Before a court has made an order for pro bono costs, it is open for the pro bono lawyer and their party to decide not to seek pro bono costs if it would facilitate settlement with the other side. Wherever possible however, the Access to Justice Foundation encourages pro bono costs to be agreed and included in settlements.

Yes. If you have incurred disbursements in your pro bono case, you can ask the judge to include these in the pro bono costs order. We can only pay out disbursements which are set out in the order.

To help inform pro bono clients and ensure awareness amongst lawyers, law firms may wish to include reference to pro bono costs in their client care or engagement letters. The following paragraph might be included where the letter refers to the firm acting without charge, or where advice is given about adverse costs risks.

Pursuant to Section 194 of the Legal Services Act 2007 and Civil Procedure Rule 46.7, in the event you are successful in this matter or any of its stages, we will seek to recover “pro bono costs” from your opponent. This is a sum of money that represents how much the legal representation would have cost if we had charged for our services, and can be ordered by the court or be included in a settlement agreement. When pro bono costs are obtained the legislation requires such costs be paid to the prescribed charity, the Access to Justice Foundation, which supports the provision of free help to yet more people.

Costs assessment and budget

The amount of pro bono costs may be decided by summary or detailed assessment, as with ordinary costs (CPR rule 46.7(1)).

However, if Part 45 fixed costs would normally have applied for this case, the amount is determined by reference to what fixed costs would have been payable: CPR rule 46.7(1)(a).

In the event the pro bono costs are not summarily assessed, CPR Part 47 provides for detailed assessment.

If the winning party is represented pro bono during detailed assessment proceedings, they may not recover normal costs for those proceedings but may seek additional pro bono costs for the extra pro bono representation (CPR rule 47.20(2)).

During detailed assessment proceedings of a pro bono costs sum, where any form of certificate of costs is made, amended, or set aside, the party obtaining the order must send a copy of that certificate/order to The Access to Justice Foundation. See CPR rule 47.11(4) (obtaining default costs certificate); rule 47.12(3) (default costs certificate set aside or varied); rule 47.16(4) (interim costs certificate issued or varied); and rule 47.17(6) (final costs certificate).

Notification and enforcement

The losing party ordered to pay pro bono costs must pay The Access to Justice Foundation, either by:

  • Bank transfer to account number 00018272, sort code 40-52-40, account name “The Access to Justice Foundation”; or
  • Cheque payable to “The Access to Justice Foundation”, sent to 7 Bell Yard, London WC2A 2JR.

The general rule is the party must pay within 14 days of the order.  We will send the parties a receipt confirming payment.

Yes, tell us that you have secured a pro bono costs order by emailing us at costs@atjf.org.uk.

CPR rule 46.7(3) requires the pro bono party to send a copy of the order to The Access to Justice Foundation within 7 days of receipt.

Please email a scanned copy to costs@atjf.org.uk. If you are unable to email a copy, please post a copy to: The Access to Justice Foundation, 7 Bell Yard, London WC2A 2JR.

Pro bono costs orders can be enforced just like normal costs orders (e.g. using a charging order).

In the event that the winning party is planning to or has taken steps to enforce the substantive judgement, please inform the Access to Justice Foundation of such proceedings (costs@atjf.org.uk)

The Access to Justice Foundation may enforce unpaid costs orders where appropriate. However, the Access to Justice Foundation does not become involved in individual cases or litigation until a costs order is made.

We instruct external solicitors who carry out enforcement work pro bono, and we   enforce and review each matter on a case-by-case basis.

Those associated with a successful pro bono costs order, such as the pro bono lawyers, may express a preference as to the distribution of the pro bono costs sum by the Access to Justice Foundation.

The Access to Justice Foundation trustees will have regard to any such preference, but in order to maintain a strategic and due diligence approach, is not bound by them.

These preferences must be communicated to the Access to Justice Foundation by email costs@atjjf.org.uk.