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Jane Wessel

Partner, Arnold & Porter

Quotation Marks
“…without funding for those who cannot afford the assistance necessary … there is a real question as to whether that right is … a chimera. ”

Access to Justice?

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Access to Justice?

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Jane Wessel considers if provision of pro bono is plugging shortfalls in legal aid provision for the vulnerable in society

Many individuals are unable to protect their rights through the legal system in England and Wales because, quite simply, they cannot afford to do so. Lord Woolf’s reforms to the Civil Procedure Rules in the 1990s made some steps towards simplifying civil legal proceedings, but the CPR remains replete with complexities which often give rise to intricate arguments over their application and make them far from accessible to any but trained, experienced professionals.  

The government makes laws, creates criminal offences, and establishes tribunals to deal with matters such as immigration, employment rights and access to social welfare funds. An individual wishing to protect their rights or defend a claim will find themselves at a severe disadvantage if they attempt to do so without help from a lawyer who is familiar with the substantive rights and  applicable procedural rules involved. The English adversarial common law system, in which each party is charged with arguing their case to persuade a judge, makes litigation more complex (and more expensive) than in many civil law inquisitorial court systems where the judge essentially acts as an investigator. The ingenuity of lawyers in this jurisdiction doubtless adds to that complexity.

Access to the courts is generally regarded as a constitutional right. However, without funding for those who cannot afford the assistance necessary to make their participation in the process effective, there is a real question as to whether that right is any more than a chimera.

The rise and fall of legal aid

Various charitable foundations attempted to plug a little of that gap over the years, but it was not until the Legal Aid and Advice Act 1949 that any provision was made for access to public funds for litigation by those with meritorious claims who could not afford to pay lawyers. Meanwhile, a patchwork of local advice centres, funded by a combination of local and national government monies, grew up across the country. The costs of the legal aid system grew inexorably over the years, reaching a peak, in the late 1990s, of around £2bn per annum.

The pendulum began to swing in the other direction in 1997, when the emphasis began to shift away from legal aid in civil actions towards favouring the introduction of Conditional Fee Agreements (CFAs) and making plans (which never materialised in a meaningful way) to create a community legal service to focus on poverty services. These innovations were reflected in the Access to Justice Act 1999, which essentially imposed stringent restrictions on the types of proceedings for which legal aid would continue to be available and encouraged the charitable sector to take more responsibility for funding legal services to those in need. In the last 20 years, the decrease in available public funds for these purposes has continued, until in the 2020s legal aid (at least in civil proceedings) is little more than a distant memory.

Pro bono plugs (some of) the gap

The need for help with access to justice did not diminish, although public funds available for that purpose did. The legal profession has risen to the challenge, increasing year on year the contribution solicitors and barristers make to providing free legal services to those in need. Prominent firms of solicitors established "the Collaborative Plan for Pro Bono” in 2015 and demand for services have grown inexorably, particularly in immigration, social welfare, housing and employment. In 2020-21, 59 of the Plan’s member firms reported their lawyers had worked a total of over 514,000 pro bono hours, supporting 31 charitable organisations, running 106 clinics, and spending huge numbers of hours advising individuals on their legal problems. Similarly, many barristers commit considerable time to pro bono work through the Bar Council Pro Bono Unit and the dedicated charity, Advocate. Solicitors and barristers collaborate together through a number of routes, including Pro Bono Connect, which pairs solicitors and barristers to work together on particular litigation matters.

Many firms of solicitors have vibrant pro bono practices, offering legal services at no cost to individuals and organisations who meet certain criteria. My own firm, Arnold & Porter Kaye Scholer, is rightfully proud of our long-standing commitment to pro bono. In the US, our pro bono work has included acting for the victims of Senator McCarthy’s anti-communist campaigns in the 1950, to supporting Black Lives Matter against the actions of the administration of President Trump in more recent years. That tradition has made the transition across the Atlantic and in London we work actively with a range of organisations and individuals to pursue cases that are often life-changing for individuals, or which assist charitable organisations or promote important public interests.

All good solicitors have developed a range of skills including gathering and organising factual evidence, interviewing witnesses, and drafting persuasive submissions, but few of us in commercial firms know much about the law and regulations of benefits, housing and immigration, which is where there is the greatest need for pro bono assistance. Several outstanding organisations exist to bridge that gap, by providing technical expertise in these areas of law, advising and guiding our lawyers as they work on these cases.

Kids in Need of Defence (“KiND”) is a prime example. Their focus is on acting for children who have spent their lives in the UK to regularise their immigration status. KiND employs specialists who supervise lawyers with little or no expertise in immigration law so we are in a position to navigate the labyrinthine immigration process to make the necessary applications. Similarly, the Tower Hamlets Law Centre guides us through benefits or housing law issues, so we are in a position to take on cases in those areas.

Pro bono costs orders

Until October 2008, a party to litigation who was represented by lawyers acting pro bono could not obtain an order for costs against an unsuccessful party, on the basis the indemnity principle only entitles a party to recover costs which they are liable to pay. However, the Legal Services Act 2007 introduced a regime of pro bono costs orders, which were incorporated into CPR 46.7.

Pro bono costs reflect the financial value of the free legal assistance from which a successful party has benefitted to the extent those costs would be recoverable by a paying client. The party against whom a pro bono costs order is made is required to pay the costs to the Access to Justice Foundation, a charitable organisation designated for these purposes by the Lord Chancellor, which then distributes those funds to agencies and projects to support the provision of free legal assistance in other cases.

The sums of pro bono costs order actually recovered by the Access to Justice Foundation are depressingly small, amounting in the year to 31 December 2020 to a mere £57,439, according to the charity’s annual accounts. This makes only a small contribution to the need for free legal services, which has grown inexorably over the years, particularly since the start of the covid-19 pandemic. This may be because the bulk of pro bono work involves tribunals, where costs orders are not usually made, and because the majority of litigation settles before trial, resulting in agreed orders, under which typically each party bears its own costs. While a useful addition to the arsenal, pro bono costs order really only contribute a very small drop in a very large ocean of need.

Commitment to pro bono

Lawyers in our firm are required to devote a minimum of 20 hours per year to pro bono work and they are entitled to full credit to their annual targets for the pro bono work that they undertake. Many lawyers contribute far more of their time than this. Why? So many reasons. It is good for society and helps to bridge the gap which has made access to justice so much more challenging in recent years. It is good for the individuals we are able to help – the disabled person whose benefits are restored, or the child who has lived in the UK all of their life who finally wins a passport or leave to remain and escapes the constant threat of being deported. It is good for human rights when we make a small contribution to improving conditions for a disadvantaged group. It is good for the lawyers who contribute their time and efforts to these cases. They learn to apply their skills in an entirely new context; they make new connections to other professionals; and, perhaps most importantly, they have the huge satisfaction of knowing they have made an important difference.

Jane Wessel is a partner in the London office of Arnold & Porter Kaye Scholer (UK) LLP, where she is head of competition litigation and leads the pro bono practice: arnoldporter.com

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