Each year thousands of lawyers give their time and skills ‘pro bono’ to help people who cannot afford to pay for representation. Since 2007, the civil courts have been able to make ‘pro bono costs orders’ in favour of successful parties who are in receipt of pro bono representation. The losing party is required to pay the amount awarded to The Access to Justice Foundation, a charity which raises and distributes funds to advice agencies, pro bono projects, and national charities which help to facilitate access to justice. Pro bono costs orders therefore raise vital funds in support of access to justice.

The Law Gazette reports that in a long-awaited move, the power to make pro bono costs orders has recently been extended by the government to the Employment Tribunal and the Employment Appeal Tribunal. Pro bono costs awards will only be made where a costs award would have been made in respect of paid representation under the particular tribunal’s rules. For example, costs awards in Employment Tribunal proceedings are available only on the narrow grounds essentially of a party having conducted the proceedings unreasonably or a claim or defence having no reasonable prospect of success.

Nonetheless, the extension of the power to award pro bono costs is still a significant development which will benefit both individual claimants and organisations who receive pro bono representation. Balance between the parties is ensured – a party facing an opponent who is represented on a pro bono basis will no longer be able to ignore the risk of a costs award in circumstances where an award could have been made if the other party had paid for representation.

This change will hopefully therefore help to discourage unreasonable conduct of litigation and potentially assist in the settlement of claims, whilst also contributing valuable funds to The Access to Justice Foundation.