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On level ground?

17 May 10

Opinion comment that pro bono costs orders as now introduced in England & Wales have the twin benefits of supporting further pro bono work and levelling the playing field for litigants

by Emma Boffey

On 8 December 2009, Mr B was successful in his Inner House appeal, with the court finding that discrimination had occurred during his employment ([2009] CSIH 93). Mr B had been assisted by University of Strathclyde Law Clinic, Simpson and Marwick Solicitors, and the Faculty of Advocates Free Legal Services Unit. Such advice and representation would have normally entailed Mr B’s employer liable for several thousand pounds of legal expenses. However, Mr B had been advised and represented by these groups on a pro bono basis and therefore, no claim for expenses could be considered by the court.

Such anomalies have now been addressed south of the border, with pro bono costs orders available to the courts of England & Wales under s 194 of the Legal Services Act 2007.

The availability of such orders is inherently beneficial in tackling unmet legal need. First, pro bono costs orders enshrine equality by requiring unsuccessful litigants to pay costs, rather than have some benefiting from the windfall of being faced with an opponent who has to rely on pro bono representation.

Secondly, and more fundamentally, such orders can generate additional funds for future pro bono activities, recycling the goodwill and charitable ethos invested by lawyers involved in the original action. This symbolises a lasting legacy of commitment to pro bono.

Moreover, and perhaps of more relevance to litigants themselves, traditional costs orders act as a preventative tool in the litigant’s arsenal, discouraging over-reliance on the courts to resolve disputes. Parties may be more willing to settle cases under the shadow of looming costs orders. Such an influence in negotiations can prevent disputants proceeding to evidential hearings, and may compel earlier dispute resolution. This avoids unnecessary use of limited court resources, and moreover, spares litigants from undue harm through further participation in our adversarial system. Following the inception of s 194, pro bono assisted litigants, like privately funded litigants, have costs as part of their legal artillery, arguably levelling the playing field in modern litigation.

Section 194 thus serves the individual pro bono litigant, and ensures future strategic funding channelled back into meeting unmet legal need. As an observer of s 194, this student regards its absence in the Scottish courts as highly regrettable. Funding generated from Mr B’s case above, could now be serving to help deliver pro bono legal services for others following in his footsteps. Mr B might also have been assisted by a potential costs order against his employer speeding the resolution of his lengthy action.

It is clear to this student that Scotland would inherently benefit from an equivalent provision in this jurisdiction. Yet even in s 194’s infancy, lessons can still be learned from experiences south of the border.

While s 194 orders may not influence the likelihood of pro bono litigants bringing an action in the first place, it is clear that the threat of costs being awarded against them can discourage the raising of meritorious actions. Limited use will be made of s 194 if pro bono litigants are frightened off raising legitimate causes, due to the anxiety posed by their potential liability for adverse costs orders, which all too often herald the threat of bankruptcy for those unable to satisfy them. To that extent, clarification on the role of protective costs orders in both public interest and pro bono litigation would be welcome in this jurisdiction.

The delivery of legal services pro bono publico has been part of our legal tradition for centuries, and it is with great pride that this student has observed a resurgence of commitment to the pro bono ethos in the last decade. Yet, such commitment alone is not enough. My experience as a student adviser in a university law clinic has taught me that despite immense time investment from students and the profession alike, it needs to be reinforced by financial support, to meet the hidden costs of tackling unmet legal need, such as accommodation, administration and supervision. In reflecting on s 194, we must remember that the funds it reaps can only ever be one means of meeting the financial challenges of pro bono work.

The strategic funding of pro bono work continues to require innovation and inspiration on the part of our profession. The advent of s 194 in England & Wales is arguably a step in the right direction.

Offering a Scottish perspective on the advent of s 194, this note would conclude by suggesting that the provision has indeed levelled the playing field for the individual litigant, and for that alone it is to be applauded. One certainly hopes the Scottish Government considers including a similar provision in a future Civil Justice Bill.

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