Costs in pro bono cases

Costs orders are rare in the employment tribunals and the EAT: each side pays its own costs, unless one side or the other has behaved conspicuously badly. (That’s not exactly what the rules say, but it is more-or-less what they mean.) That means that as long as you’re not paying anything for legal representation, the financial risks of suing your employer in the employment tribunal and/or appealing to the EAT are modest.

Employment tribunal cases occasionally get appealed to the Court of Appeal. At this point, the risks change radically: in the Court of Appeal, the normal rule is that the losing side pays the winner’s costs. If your employer is being expensively represented by specialist lawyers, that could represent a risk of several thousand pounds at least.

Until recently, in a case where the claimant was being represented for free (or pro bono as it’s still often called), the risk was one-sided: the claimant faced a risk of paying the respondent’s substantial costs if she lost, but the respondent couldn’t be made to pay the claimant’s costs because the claimant hadn’t incurred any. That could put you at a serious tactical disadvantage.

The good news

This has now changed. Under section 194 of the Legal Services Act 2007, the Court of Appeal (and the other ordinary civil courts – but not the ETs or the EAT, which have their own rules) can now make a ‘costs’ order against the losing party even where the winner has been represented pro bono. The money goes to a legal charity.

The bad news

Unfortunately, instead of giving judges power to do the obvious thing and award the money to the charity that has represented you or arranged for your representation, or to some other suitable charity, a new charity called the Access to Justice Foundation has been set up especially for the purpose of receiving and distributing money generated by these costs orders. It will distribute the money among seven separate of ‘Regional Legal Support Trusts’ (yet to be set up), which will pass the money on, according to criteria (yet to be formulated) to legal advice charities.

It’s clear from the Foundation’s website that a lot of organisations and high-powered individuals have been involved already in the meetings, steering groups, sub-committees, consultations, Press announcement, drafting of constitutions and policy papers etc etc. that this exercise has demanded; and that there is much work yet to do.

There is no possible doubt about the good will of those involved. But it is hard not to think wistfully about the individual wrongs that might be righted the were to devote their time, and their formidable energy and abilities, to pro bono casework instead. It is even more grieving to think of the time that hard-pressed voluntary sector lawyers will in due course have to take away from their casework to study the Foundation’s grant-making criteria and then write applications tailored to those criteria.

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