BL-2023-BRS-000024 - [2025] EWHC 2898 (Ch)

The order that I made was one under section 194 of the Legal Services Act 2007. Such orders are often, if inaccurately, referred to as “pro bono costs orders”. Section 194 relevantly provides:

“(1)

This section applies to proceedings in a civil court in which—

(a)

a party to the proceedings (‘P’) is or was represented by a legal representative (‘R’), and

(b)

R's representation of P is or was provided free of charge, in whole or in part.

[ … ]

(3)

The court may order any person to make a payment to the prescribed charity in respect of R's representation of P (or, if only part of R's representation of P was provided free of charge, in respect of that part).

(4)

In considering whether to make such an order and the terms of such an order, the court must have regard to—

(a)

whether, had R's representation of P not been provided free of charge, it would have ordered the person to make a payment to P in respect of the costs payable to R by P in respect of that representation, and

(b)

if it would, what the terms of the order would have been.

[ … ]

(7)

Rules of court may make further provision as to the making of orders under subsection (3), and may in particular—

(a)

provide that such orders may not be made in civil proceedings of a description specified in the rules;

(b)

make provision about the procedure to be followed in relation to such orders;

(c)

specify matters (in addition to those mentioned in subsection (4)) to which the court must have regard in deciding whether to make such an order, and the terms of any order.

(8)

‘The prescribed charity’ means the charity prescribed [under section 194C].

[ … ]

(10)

In this section—

‘legal representative’, in relation to a party to proceedings, means a person exercising a right of audience or conducting litigation on the party's behalf;

[‘civil court’ means—

[ … ]

c the High Court,

[ … ]

‘free of charge’ means otherwise than for or in expectation of fee, gain or reward.

[ … ]”

I add only that the charity prescribed for the purposes of subsection (8) is the Access to Justice Foundation.

CPR rule 46.7 relevantly provides:

“(1)

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

[ … ]

(b)

where Part 45 does not apply, the court may assess 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)

conducting a summary assessment; or

(ii)

making an order for and conducting a 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.”

In addition, paragraph 4 of CPR PD 46 says:

“Where an order is sought under section 194(3) of the Legal Services Act 2007 the party who has pro bono representation must prepare, file and serve a written statement of the sum equivalent to the costs that party would have claimed for that legal representation had it not been provided free of charge.”

Paragraph 2 of the order that I actually made reads as follows:

“The Claimants shall on a joint and several basis pay costs in respect of the First and Second Defendants' pro bono representation to the Access to Justice Foundation (The Access to Justice Foundation, 7 Bell Yard, London WC2A 2JR), such costs to be summarily assessed on the standard basis if not agreed and paid within 14 days of the assessment or agreement as applicable.”

Accordingly, what I may assess under CPR rule 46.7(1)(b) is:

“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”.

And, for this purpose, CPR Parts 44-47 apply with modifications to take account of the fact that in fact no costs were incurred by the represented party, as the representation was provided free of charge.

In the previous paragraph I used the words “may assess” advisedly. First of all, that is the phrase used in the rule itself. But there is also the decision in Manolete Partners plc v White (No 2) [2025] 1 WLR 1094, CA. There, a pro bono costs order had been made under section 194, against a litigation funder. The funder sought a conditional order that would allow it to set off the amount due under the order against a sum due to it from the represented party. The Court of Appeal refused to make that order.

In the course of his judgment, Snowden LJ (with whom Asplin and Green LJJ agreed) said this:

“17.

The first point to make is that the power to make an order under section 194(3) is discretionary. Although, under section 194(4), the court is obliged to ‘have regard to’ the order it would have made if ‘P’ had not been represented pro bono, contrary to Manolete's submissions, this does not amount to a requirement that the court make an order in favour of the AJF that exactly, or even so far as possible, corresponds to the costs order it would have made in the absence of pro bono representation.

[ … ]

19.

Thirdly, although often called a ‘pro bono costs order’, an order under section 194 is not a conventional order for costs made under section 51 and CPR 44. It does not, for example, conform to the indemnity principle that underlies conventional costs orders. As such, while section 194(4) in effect requires the court to have regard to the principles that apply to such costs orders, the power to make an order under section 194 must also be exercised having regard to the legislative purposes behind the enactment of that section.

20.

The legislative purposes of section 194 are relatively easy to see. Before the introduction of section 194, a privately funded party who was litigating against a person who was represented pro bono had the tactical advantage that they were not exposed to the usual risks of an adverse costs order. The introduction of section 194 was designed to put the parties on a more equal litigation footing by exposing the privately funded party to a similar risk of adverse costs. In addition, the identification of a charity as the beneficiary of an order under section 194 and the designation of the AJF makes clear the intent that orders under the section should provide a source of funding to support organisations involved in the provision of free legal help to a wider cross-section of the public who might be in need.

[ … ]

27.

In these circumstances, I would adopt a broad brush which errs on the side of caution. The order sought is for just over £120,000. I would make an order under section 194 that Manolete pay £85,000 to the AJF.”

(See also Mahmoud v Glanville [2025] EWHC 2395 (Fam). [14]-[19].)