This is a blog (sign)post, highlighting something I have written for the Journal of the Law Society of Scotland about pro bono expenses orders.
Pro bono expenses orders, which may come to be known as legal volunteering expenses orders, are new devices that can be used in Scottish court proceedings. They are provided for in section 9 of the recently passed Civil Litigation (Expenses and Group Proceedings) (Scotland) Bill (PDF).
When it is fully implemented, this provision will allow a court to make an order against a litigant where that litigant has been up against a party who has been represented “free of charge” (pro bono publico – for the public good). As things stand, and as explained in my article, such a litigant can get something of a windfall by not having to pay the expenses of a party who has the benefit of free representation, which could have been payable where the other party had paid for representation. Further, such a litigant has less incentive to settle, as the non-existent expenses cannot be counted in any settlement negotiations.
This will soon change, so those issues that might skew a case that has been taken pro bono can be avoided. But the implications will also go beyond any individual case. The beneficiary of any orders made will be a suitable charity who can then use the monies received in ways that will help address wider access to justice issues.
This seems long overdue. An equivalent power was introduced in England and Wales in 2007. As noted in my article, a number of people have been calling for this power through the years. In my classes, I have been flagging the non-availability of the power to students acting pro bono for some time as well. I am delighted that I will soon no longer need to do so and instead be able to direct students and other pro bono agencies to this power.
That’s enough for this blog post about the new power. The rest is in the longer article. But before I go: yes, the article is replete with references to the band The Levellers.
I have been a huge fan of The Levellers for years, so it does not take much for me to refer to them. I did have a legitimate reason to do so here though, honest. When I realised that an earlier article by Emma Boffey calling for the introduction of a pro bono expenses order gave me a perfect in to talk about Levelling the Land I couldn’t resist. #sorrynotsorry
Incidentally, there are loads of songs by The Levellers that deserve legal scrutiny. Battle of the Beanfield or PC Keen anyone? And there is surely room for jurisprudential analysis of Dirty Davey: “It’s a kick in the head, and a prison bed, and they tell you it’s the law…” Or “Corrupt corrupt, from the bottom to the top and they tell you it’s the law…” And, more in line with the article I have just written, “There’s a law for the rich, a law for the poor, and a law for Dirty Davey“. That is for another time. I just hope this blog post might inspire someone else to channel The Levellers and deploy a weapon called the word.