The Court of Appeal has just handed down its costs judgment in Manolete v White. It has held that a pro-bono costs award should be made against the unsuccessful respondent, even though it is likely that, if the appellant had been represented, any costs award in his favour would have been set off against the outstanding judgment debt.

Under s.194 of the Legal Services Act 2007, where a party is represented pro-bono, the court has the power to make an order that another party should make a payment to the prescribed charity (which is the Access to Justice Foundation). In doing so, the court must “have regard to” the terms of the order it would have made if the (notional) receiving party had been paying for representation.

Mr White owes Manolete a substantial sum by way of judgment debt, interest and costs. It was common ground that following his successful appeal it is likely that, had he not been represented pro-bono, the court would have made a costs order in his favour and against Manolete, but would have permitted Manolete to set those costs off against his pre-existing liability. Relying on this, Manolete argued that no award in favour of the AJF should be payable until it had recovered the same amount from Mr White.

The Court of Appeal disagreed. It held that the requirement that the court should “have regard to” the terms of any notional costs order did not entail that it should make an identical, or even similar, order in favour of the AJF. Moreover the purpose of s.194 is to level the playing field by exposing both parties to costs risk, and the identification of a charity as beneficiary of an order under s.194 shows that the intention was also to assist in the funding of organisations providing free legal help to the public. On that basis it ordered Manolete to pay notional costs to the AJF regardless of any recovery from Mr White, and summarily assessed them because it was unreasonable to expect either the AJF or those acting pro-bono for Mr White to take part in detailed assessment proceedings.

Reuben Comiskey represented Mr White pro bono, along with Brad Pomfret KC, instructed by Simeon Gilchrist and Nicole Davis of Edwin Coe LLP, also acting pro bono. Brad and Reuben were originally instructed by Advocate, the Bar pro bono charity.

Read the full judgment here.