Do something for nothing: there’s help out there

20 May 2011 by David Hart KC

If you don’t charge your client anything, how can you charge the other side? Answer:  completely lawful, it’s all in the statute.   Essentially, if you, a pro bono advocate, file a statement of the costs which you would have charged, had you been doing it for money. If you follow the right procedures, you may recover costs from the losing party. And it is as simple as that. If anyone is in any doubt, the Court of Appeal has just followed this rule in  Grand v. Gill [2011] EWCA Civ 554, where it made an award of £2,500 to the successful tenant, who had increased her damages on appeal.

Though there was a certain amount of publicity when this provision came in, this case is a good reminder of this power. However, for those pro bono advocates who scent possible recompense for themselves, remember, you are not the beneficiary of the money when paid. It goes to “the prescribed charity,” namely the Access to Justice Foundation.

I was interested to see in how many cases such an order had been made since it came into force in 2008. In terms of decisions electronically available on Bailli are anything to go by, the answer seems to be – one.

I found one application mounted in rather unpromising circumstances, at 5.30pm at the end of a very long day, to a judge who had never heard of the provision, and with no warning to the other side  – oddly, it did not find favour. So the only one on Bailli is Grand v. Gill. However I know that it is by no means a first – such an order (apparently £20,000) was also made in Redstone Mortgages Plc v Welch and Jackson [2009] 36 EG 98, and a recent Bar Pro Bono press release refers to one order of £41,000.  I also understand that the total sum ordered in favour of the foundation now totals some £130,000: see Owen Bowcott’s post in the Guardian.  That all said, no harm taking a copy of the judgment in Grand v. Gill as well as s.194 next time you do a pro bono case.

And, finally  – the least I can do is mention the name of the barrister who not only took on the pro bono case (mainly about damp and mould) but also persuaded the CA to make a s. 194 order – John de Waal.

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Related reading:

• The ingenious scheme to make pro bono work pay