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Unlocking the Funds for Justice - Pro Bono Costs

Cyrus Larizadeh, barrister of 4 Paper Buildings and Senate House Chambers, explains the costs issues which arise where an advocate, acting pro bono, represents a successful party in care and/or placement proceedings.

Cyrus Larizadeh, barrister, 4 Paper Buildings

Cyrus Larizadeh, barrister, 4 Paper Buildings and Senate House Chambers

The infection suffered by the family justice system, created by the lack of legal aid and the growth in the number of litigants in person, has spread up to the Court of Appeal which has an increasing burden of appeals lodged by litigants in person.

For example, Lindner v Rawlins [2015] EWCA Civ 61 involved two litigants in person, although the respondent to the appeal did not attend. The appellant had approached the case on an erroneous legal basis. Aikens LJ highlighted the problems in his judgment:

"Yet again, the court was without any legal assistance and had to spend time researching the law for itself then attempting to apply it to the relevant facts in order to arrive at the correct legal answer. To do the latter exercise meant that the court itself had to trawl though a large amount of documents on the file. All this involves an expensive use of judicial time, which is in short supply as it is. Money may have been saved from the legal aid funds, but an equal amount of expense, if not more, has been incurred in terms of the costs of judges' and court time. The result is that there is, in fact, no economy at all. Worse, this way of dealing with cases runs the risk that a correct result will not be reached because the court does not have the legal assistance of counsel that it should have and the court has no other legal assistance available to it."

Pro bono representation too is on the increase to respond to the problems caused by the infection. The regular email requests each week sent to chambers by the Bar Pro Bono Unit asking for counsel to give up their time to advise and to attend court hearings include representation in the Court of Appeal. I took up one of these requests for pro bono help in July 2014 when I agreed to act on behalf of a father in the Court of Appeal in Re G (A Child) [2014] EWCA Civ 1173.

This article seeks to explain the costs issues which arise where an advocate, acting pro bono,  represents a successful party on appeal in care and/or placement proceedings. It is intended to demonstrate the opportunities that exist to recoup costs from the losing parties, including the local authority. It also seeks to explain how the pro bono costs process works generally and its application is not limited to appellate cases but wherever costs issues arise in family cases. 

Factual background to the case of Re G
The child at the centre of the appeal was a girl, E, born 4th November 2003 and was therefore aged 10½ years.  She is the second eldest of four children born to JG ("the mother") and KE ("the father") during the course of an extended extra-marital affair.  The father throughout had remained together with his wife, who knew of the affair.  Indeed for some time the father and his wife have provided a home for the eldest child, another girl, L, born in March 1999 and therefore was aged 15 years at the time of the appeal.

The two younger children were A, born March 2008, then aged 6 and C, born October 2010 then aged 3¾ years.  The three youngest children, E, A and C, were made the subject of full care orders and orders authorising the local authority to place them for adoption by a decision of the local family proceedings court made in May 2012.  The plan was for all three children to be placed for adoption together. 

As E was by then aged 8, that plan was plainly ambitious.  In the event it could not be realised and, by December 2012, the local authority changed its plan for E to one of long term foster care.  An adoptive home was, however, found for A and C.  The adopters live outside the United Kingdom.  A and C were placed with the adopters in July 2013 and an adoption application with respect to A and C is now pending before the Family Court. 

The issue on appeal: contact between E and her birth family
The issue at the focus of this appeal related to the provision for contact between E and the various members of her family in the circumstances which have now become settled, namely, that she is to spend the foreseeable future in long term foster care, whilst her two younger siblings settle into their adoptive home abroad and her elder sister, L, continues to reside with her father and his wife.  At first instance the competing arguments crystallised into the case on behalf of the family which was that regular face to face contact between E and her mother, father and L should continue.  The course of action favoured by the local authority and the guardian was, however, that priority should be given to maintaining some face to face contact between E and A and C in the light of the fact that they had always lived together until July 2013.  It was generally accepted that, if E was going to carry on seeing A and C, she would be bound to understand details of their placement with the result that it would be impossible to maintain the confidentiality of that placement if E were also to carry on having any form of open and direct contact with either of her parents or L. 

The case was heard by Her Honour Judge Hudson sitting in Newcastle upon Tyne on 20th November 2013.  By agreement between the parties, no oral evidence was called and the case was determined on the basis of submissions.  L was not joined as a party to the proceedings but she made an application for contact and was represented by her own solicitor. L's solicitor received some, but only very limited disclosure of the case papers.  She was permitted to enter the court room in order to make her submission, but did not hear the submissions made by the other parties. 

In the event HHJ Hudson favoured the plan supported by the local authority and the guardian.  As a result she made orders under Children Act l989, s 34(4) authorising the local authority to refuse contact between E and her mother, father and L.  Provision of contact between E and A and C was to proceed on the basis of clear statements of intent that had been given by the proposed adopters. In addition the judge, with the agreement of all parties, revoked the placement for adoption order with respect to E, and dismissed applications which each of the parents had made to discharge the care order in E's case.

The appeal
On 1st April 2014 McFarlane LJ granted the father's application for permission to appeal with respect to the contact decision only.  The father had no legal training or experience but made the application for permission in person. He had approached three firms for legal aid and representation and had been refused legal aid. He is a man of modest means but found himself ineligible for legal aid. He was not able to fund the costs of the appeal privately.

The father had to put together case papers and draft his own written submissions in the Court of Appeal and hope that someone through the Bar Pro Bono Unit would take up his appeal.  The local authority was represented by a QC and a senior junior. The eldest daughter L had the benefit of legal aid and was separately represented at the appeal by both a QC and a senior junior.  The Guardian who was legally aided was also represented by a senior junior and fully supported the local authority in the appeal. The mother was in person and attended by videolink.

I was able to take up the father's appeal at the eleventh hour and together with Ms Scriven QC and Ms McKie for L, we succeeded in persuading the Court of Appeal to allow the appeal on 21 July 2014. The judgment followed on 15 August 2014. The full judgment on the appeal is reported as Re G (A Child) [2014] EWCA Civ 1173. The case was remitted before a different judge at the Family Court in Newcastle for further consideration of the issue of contact.

Pro bono costs order
I then sought a pro bono costs order under s 194 Legal Services Act 2007 of £1890 against the respondent local authority in favour of the Access to Justice Foundation. I did not submit that the local authority had acted unreasonably in the conduct of the litigation at first instance or on appeal. Instead, a costs order was sought on the basis of the leading judgment of Macur LJ in Re S (Children) [2014] EWCA Civ 135. The local authority had fully opposed the appeal. I argued that the starting point must be that costs should follow a successful appeal and discretion should be exercised in favour of the successful appellant and that s.194 and CPR 46.7 make it clear that pro bono cases should not be treated differently from other private cases. 

The local authority opposed a costs order and further argued that in any event, costs should not be sought exclusively against it as the Guardian fully supported the local authority case and was represented at the appeal hearing.

The decision on costs in Re G was handed down as Re E (B4/2014/0146) on 8 October 2014. The Court of Appeal did make a pro bono costs order in favour of the Access to Justice Foundation against the local authority which had opposed throughout the appeal brought by the father in care proceedings.

There was no full judgment handed down but short written reasons were given by the Court of Appeal (Lord Justice Aikens and Lord Justice McFarlane). In those reasons the Court of Appeal treated pro bono costs as an exceptional category in appeals in care cases, holding as follows:

"Although we are mindful of the need to avoid a default position where local authorities are vulnerable to costs awards in any appeal in which the position put forward by the authority is unsuccessful, we consider that the circumstances in the present case, where the [Access to Justice] Foundation is engaged in supporting pro bono representation, create an exception to the general position. There is a public interest in the Bar Pro Bono Unit being compensated on a reasonable basis by an award of costs where such an award is available under the legislation."

Lord Justice McFarlane has given permission to the Access to Justice Foundation to refer to the reasons in public.

As counsel acting pro bono on behalf of the successful appellant, I had invited the Court of Appeal to treat pro bono costs in the same way as normal civil costs and to hold that costs should follow the outcome of that appeal. I referred their Lordships to these passages from the judgment of Lady Justice Macur in Re S ( CA) :

"30. The father has funded this appeal privately and seeks his costs in the sum of £13,787.70. He does not aver that the local authority have engaged in reprehensible behaviour or took an unreasonable stance in the hearing at first instance to justify a departure from the normal rule that costs are not awarded  in children's cases. However, Mr Bainham argues that the judgment in Re T (Children) [2012] UKSC 36  to this effect  is directed at first instance hearings  where public policy considerations militate against any possible financial deterrent to an authority taxed with the responsibility of protecting children  from pursuing proceedings. Likewise, in the case of an appeal neither should a parent be deterred from challenging decisions which impact upon the most crucial of human relationships. Ms Markham argues the case is not so restricted and resists the application.

31. I consider the question of costs in the appeal to be of a discrete category and the discretion of the Court broad. Re T is distinguishable for the reasons argued by Mr Bainham.

32. In this case, Ms Markham has been forced to recognise the deficiencies of the judgment of the lower court but nevertheless has resisted the appeal. In the circumstances of the father's limited means, already decreased by his travel from Norway to the United Kingdom to exercise contact, I would grant his application and order costs in the sum of £13,787.70."

The Court of Appeal in Re G (also known as Re E)  however, of its own motion and without being invited to do so, had decided that pro bono costs should be treated as an exception to the general position on costs.

The Supreme Court had already given permission to the appellant local authority in Re S to appeal the Court of Appeal's decision in that case to the Supreme Court.  That hearing was listed and took place on 28 January 2015. The judgment is awaited.

The outcome for the children in Re G
The local authority which been ordered to pay costs in Re G/Re E did not seek to appeal that order to the Supreme Court. The costs were paid within 14 days of the costs order having been made.  The care proceedings which were subject to the appeal in Re G concluded in January 2015 with the child E resuming regular contact with her father and sibling L.

Save a progress report about E sent to the father and L shortly before the July appeal hearing, they had not been permitted by the said local authority to have any contact direct or indirect to E and more importantly between E and them for nearly a year. Nor had the father been invited to attend any LAC reviews during that time. The Court of Appeal had been critical in Re G of the local authority's implementation of the care plan. The local authority accepted some responsibility before the Court of Appeal and later apologised to the father and L for some of its conduct. The social work which followed the appeal was of a high quality and the local authority amended its care plan to promote both regular direct and indirect contact between E and the father and L. The adopters changed their position regarding inter sibling contact which led the local authority to promote contact.

'Taking stock' and costs implications
Parties to a proposed appeal must take stock much earlier of the position and of the merits of the appeal and certainly in good time before the appeal hearing and consider carefully whether they should concede that the proposed appeal should be allowed. It is of course accepted that permission being granted does not mean that the appeal will be allowed but it must focus attention on the possibility that the appellant may have more than an arguable case.

As Dr Andrew Bainham, counsel on behalf of the respondent, argued in Re S in the Supreme Court, the overall effect of the costs rules in children cases is summarised by the authors of Cook on Costs as follows:

"Accordingly in family proceedings that are not financial remedy proceedings to which FPR 28.3 applies, the court is neither bound by the presumption that there will be no order for costs as it is where the rule applies, nor is it bound by the civil presumption that costs follow the event. The Court therefore has a wide discretion." (Simon Middleton and Jason Rowley, Cook on Costs, Butterworths Lexis Nexis, (2014) at paragraph 39 [12])

There is Court of Appeal authority in Re M (A Child) [2009] EWCA Civ 311  confirming that in the matter of appeal costs in children cases the court enjoys a wide discretion. 

The view of the authors of Cook on Costs in relation to appeal costs in family cases is as follows:

"Costs are much more likely to be awarded on an appeal than at first instance. At first instance nobody knows what the judge is going to find. On an appeal both parties have the chance to take stock and make an offer." (Ibid at paragraph 39[17)

I agree with Dr Bainham that whilst the language of 'making an offer' is scarcely appropriate in care and placement proceedings, the sense of taking stock has equal application. I accept his proposition that what is required in multi-party public law proceedings is negotiation, compromise, a genuine attempt to find a constructive and agreed way forward in the light of the appeal, the need to save costs and to avoid delay for the children concerned.

Are pro bono costs exceptional?
Seeking clarification generally on the treatment of pro bono costs in appellate cases involving care or placement proceedings, the Access to Justice Foundation applied successfully for permission to intervene in Re S. It is the only time that the Foundation has sought to intervene in the Supreme Court. At the Re S UKSC hearing on 28 January 2015 it demonstrated its integrity by submitting that the Court of Appeal was wrong in Re G/ Re E to hold that the fact that there is pro bono representation creates an exception to the general position.  It argued that a pro bono costs order should have been made only if it would have been appropriate for a costs order to have been made against the local authority, had the father been represented on a fee paying basis. It argued that applying Re S (CA) it was appropriate for such a costs order to have been made and therefore the outcome of Re E is correct. The decision to do so was the correct decision, but the reasons given by the Court of Appeal were incorrect. The Supreme Court's views on the issue of pro bono costs will be obiter only but hopefully it will provide some guidance on the issue which will continue be become more common and of general public importance.

It is not possible to set out here the detailed arguments in Re S before the Supreme Court (2014/0101) presented by Will Tyler QC and Hannah Markham for the appellant but they did highlight with force that local authorities should not be used as 'bank accounts of the last resort'. Furthermore I could not do justice in this short space to the wide ranging submissions of Dr Bainham for the respondent nor to the variety of points made on behalf of the Foundation by Mr Lance Ashworth QC, by myself and by Ms Dorothea Gartland.

Background to pro bono costs
Pro bono costs were introduced in 2008 by section 194 of the Legal Services Act 2007 ("LSA 2007"). These are an exception to the indemnity principle.  Prior to the introduction of this section, under the previous costs law an unsuccessful party could not have been required to pay any amount in respect of pro bono representation of the successful party because the services were provided free of charge.  This meant there was an unlevel playing field between a party who could afford legal representation and one who was unable to, because there would not be the same costs incentive to take a realistic view as to a case due to the lack of any risk as to adverse costs.  The intention of s 194 was to level the playing field and to provide a new source of funding for access to justice.

Rules of Court have been made and are contained in CPR Part 46.7:

(1) Where the court makes an order under section 194(3) of the 2007 Act –

(a) the court may order the payment to the prescribed charity of a sum no greater than the costs specified in Part 45 to which the party with pro bono representation would have been entitled in accordance with that Part and in respect of that representation had it not been provided free of charge; o

(b) where Part 45 does not apply, the court may determine the amount of the payment (other than a sum equivalent to fixed costs) to be made by the paying party to the prescribed charity by –

(i)  making a summary assessment; or

(ii) making an order for detailed assessment,

of a sum equivalent to all or part of the costs the paying party would have been ordered to pay to the party with pro bono representation in respect of that representation had it not been provided free of charge.

(2) Where the court makes an order under section 194(3) of the 2007 Act, the order must direct that the payment by the paying party be made to the prescribed charity.

(3) The receiving party must send a copy of the order to the prescribed charity within 7 days of receipt of the order.

(4) Where the court considers making or makes an order under section 194(3) of the 2007 Act, Parts 44 to 47 apply, where appropriate, with the following modifications –

(a) references to 'costs orders', 'orders about costs' or 'orders for the payment of costs' are to be read, unless otherwise stated, as if they refer to an order under section 194(3);

(b) references to 'costs' are to be read as if they referred to a sum equivalent to the costs that would have been claimed by, incurred by or awarded to the party with pro bono representation in respect of that representation had it not been provided free of charge; and

(c) references to 'receiving party' are to be read, as meaning a party who has pro bono representation and who would have been entitled to be paid costs in respect of that representation had it not been provided free of charge.

The Access to Justice Foundation
The Access to Justice Foundation is the prescribed charity under section 194(3) LSA 2007, set up by order of the Lord Chancellor under the Legal Services Act 2007 (Prescribed Charity) Order 2008 (AI 2008/2680).

The Guidance issued by the Access to Justice Foundation in November, 2010 (launched by Lord Neuberger MR as he then was) is in the White Book at 48GP.13-16.

The Access to Justice Foundation was established in 2008 by the Law Society, the Bar Council and the Chartered Institute of Legal Executives, working with the advice sector represented by the Advice Services Alliances, and with the support of the Attorney General and the Judiciary.

For further information about the Foundation, please click here.

The AJF works with the advice sector to provide new, strategic funding for organisations providing free legal help to those most in need and to help meet the overall aim of increasing access to justice. It raises and distributes money throughout England and Wales to help people, who are unable to afford legal help but who do not qualify for legal aid, to gain access to justice. It distributes the money to non profit legal services trusts and to national pro bono organisations and to strategic projects. The Bar Pro Bono Unit and the RCJ Advice Bureau are among the beneficiaries of such funding.

The figures
Ministry of Justice figures show that in 2013 there were 137 disposals of appeals to the Court of Appeal in family law cases. Of those, 55 appeals were allowed (40%), 73 dismissed (53%), and 9 otherwise disposed of (7%). Similar figures can be observed for 2012 [69 allowed (50%), 59 dismissed 43%), 9 otherwise (7%)] and 2011 [56 allowed (46%), 64 dismissed (52%) and 3 otherwise (2%)].

In 2013 there were a total of 157 family cases in which the Bar Pro Bono unit assisted, of which 119 cases were children cases; in 2014 this increased to 290 of which 225 were children cases.  Since their introduction in 2008, pro bono costs orders totalling over £400,000 have been made in 116 cases.  To date, family cases have been a very small proportion of the cases in which pro bono costs orders have been made; there have been four pro bono costs orders made in family cases totalling £3,890, only one such order being made in care proceedings against a local authority in the sum of £1,890 in the case of Re G / Re E (B4/2014/0146). This was the case described above.

The burden on local authorities as a whole as a result of pro bono costs orders is relatively small: a total of 23 pro bono costs awards (20% of the total number of awards) have been made against local authorities amounting to some £66,000 in costs.  The vast majority of these have been in housing and judicial review claims. As stated above, only £1,890 has been awarded against a local authority in care proceedings.

Lack of legal Aid – impact on pro bono representation
Sir James Munby P in the matter of D (A Child) [2014] EWFC 39 made observations on the availability of legal aid since the introduction of Legal Aid, Sentencing and Punishment of Offenders Act 2012 ("LASPO"), and the burden being taken on by the legal profession, acting pro bono, in the context of having to grapple with "the profoundly disturbing fact that the parents do not qualify for legal aid but lack the financial resources to pay for legal representation in circumstances where, to speak plainly, it is unthinkable that they should have to face the local authority's application without proper representation."  At paragraph 31(vi) of his judgment the President observed that reliance was being placed on the goodwill and the charity, of the legal profession.

A parent in care proceedings at first instance will be able to obtain legal aid without having to satisfy the "means" or "merits" criteria, but that (1) an intervener at any stage will only be able to obtain legal aid if he satisfies both criteria and (2) a parent on an appeal (regardless of whether leave to appeal is granted) will only be able to obtain legal aid if he/she satisfies both criteria. 
It is also the case that a parent will not qualify for non-means, non-merits, tested legal aid when facing an application for removal of a child and his adoption, if the initial plan in proceedings under section 31 of the Children Act 1989 was not for removal of the child (see Re D at paragraph [25]).

It is highly probable that, absent a radical rethink by the legislature on the funding of legal proceedings (which seems unlikely given the current state of the nation's finances), the number of family cases in which pro bono representation is going to occur is going to increase. It is clear that the number of family cases in which pro bono representation is likely to be provided is increasing and therefore the question of pro bono cost orders is likely to arise on a more frequent basis than previously. As yet however, despite the increase in pro bono representation there has not been a corresponding increase in the amount of pro bono costs awards awarded. The likely future burden of pro bono costs awards in respect of all family cases is therefore not yet clear.

The correct approach to pro bono costs
The courts have the power under s 194 LSA 2007 to make a pro bono costs order whenever a party is represented pro bono.  In deciding whether to make such an order and if so, on what terms, the Court is required to have regard to (a) whether it would have made an order for costs if the pro bono represented party had been represented on a fee paying basis, and (b) if so, the terms of such an order.

The only current prohibitions against making a pro bono costs order are if the other party is at all times himself represented pro bono or is funded by legal aid, in which case no such order can be made (s 194(5) and (6)).

While it is not limited to such as a matter of law, in practice a losing party is/should be ordered to pay the costs, which would have been payable if the winning party had been obliged to pay for its representation, to the prescribed recipient, the Access to Justice Foundation.

The correct approach to pro bono costs is that set out by the Court of Appeal in Grand v Gill (2011) EWCA Civ 554 at paragraph [29]. That was a "damp house" case under section 11(1) of the Landlord and Tenant Act 1985.  The Court of Appeal treated the case in the same manner it would have a privately funded case, making a pro bono costs order in the sum it would have done had the successful appellant been paying for her representation.

The purpose of s. 194 LSA 2007 is that pro bono costs should be treated in the same way as other civil costs, both as to liability of the paying party and as to quantum (consistent with the AJF's Guidance issued to the profession and the judiciary which has been adopted without criticism since its launch in 2010).  This approach is necessary:

(a) to fulfil the policy behind the introduction of pro bono costs, as set out above;

(b) to give greater certainty to parties so that they can assess the risk and amount of any adverse costs liability;

(c) to ensure that in practice there should not be a distinct costs regime for pro bono costs thereby avoiding satellite litigation;

(d) to make the approach to pro bono costs as straightforward as possible for both those appearing pro bono and those sitting in such cases.

Therefore whatever the Supreme Court decides should be the principle for appellate costs in care proceedings should apply equally to pro bono costs.

The Supreme Court will hand down its decision on appellate costs in care and placement cases later this year. Whatever it decides is the correct approach in privately funded cases on appeal applies to pro bono costs orders.

Practitioners representing clients pro bono should have greater awareness that they can and should apply for pro bono costs orders where appropriate following the correct legal principles relating to costs whether these be at first instance or on appeal. VAT does not apply to such orders [PD 44 rule 2.14] and they must be paid within 14 days [PD 44.3]. A schedule of costs should be produced based on private rates for the practitioners costs. Costs will be assessed in the usual way if not agreed.

Unlock the Funds for Justice: where you can, seek pro bono costs orders.