Pro bono costs orders have finally reached the Supreme Court after new provisions came into force last week that close a hole in the Legal Services Act 2007.
As of 1 October, section 61 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) enables the Supreme Court to make an order for costs, in cases from England and Wales, in favour of the Access to Justice Foundation which funds pro bono representation across the country.
The new arrangements will apply to appeals against court orders made after 1 October 2012, and so will not affect any pending cases.
The move brings the Supreme Court in line with other courts dealing with civil matters in England and Wales, covered by section 194 of the Legal Services Act 2007. An amendment to that Act was tabled by Lord Pannick QC during debate over LASPO, and supported by all sides of the House of Lords at report stage.
Speaking to his amendment at the time, Lord Pannick QC explained: “When [a] pro bono lawyer succeeds for the claimant or the defendant, the unsuccessful other party cannot be ordered to pay the costs of the proceedings because the successful litigant has no costs, or limited costs, having received pro bono assistance. The losing side would gain an unfair benefit and indeed an unfair advantage in the litigation.
“Section 194 of the Legal Services Act 2007 has one small defect; it applies to the county courts, the High Court and the Court of Appeal but it does not apply to the Supreme Court. There is no sensible reason for not conferring this valuable power on the Supreme Court to make orders for payments to the prescribed charity in appropriate cases. Indeed, many cases in which lawyers act pro bono are heard by the Supreme Court.
“Justices of the Supreme Court and the Supreme Court users’ group have expressed the view that section 194 should apply to the Supreme Court as it does to other courts.”
Sheriff Principal James Taylor is currently exploring the position regarding pro bono costs in Scotland as part of his review of expenses and funding of civil litigation.