It may have been heralded with a champagne reception at Coutts attended by the legal great and the good but the launch last week of the Access to Justice Foundation had little to do with the world of high finance.

Ironically it was a significant step forward in the drive to plug the gap for those who cannot afford hefty legal fees — nor qualify for legal aid — and to ensure that more people can pursue or defend their rights.

The foundation is not just another fundraising charity. It tackles an anomaly in the litigation system that is both an injustice and a loss of potential funds for further pro bono (free) work.

At present, when a litigant with pro bono help wins a case, he or she does not reap the usual benefits of recovering costs from the other side. So the losing party gets off lightly.

The foundation, a cross-profession initiative backed by the Law Society, Bar, Institute of Legal Executives and Advice Services Alliance, has sought a change in legislation that will allow judges to order costs in favour of successful pro bono litigants.

Section 194 of the Legal Services Act 2007, which came into force on October 1, was promoted by a national pro bono co-ordinating committee under Baroness Scotland of Asthal, the Attorney-General, and driven also by Lord Goldsmith, QC, her predecessor, who will chair the foundation board of trustees.

The idea is that the costs ordered by the courts will go into the foundation which in turn will channel funds to a new network of regional legal support trusts and they in turn will distribute the money to local legal advice charities, helping to further the cause of pro bono in communities.

Michael Napier, QC, the Attorney-General’s pro bono envoy, said that the initiative would “unlock new money to help pro bono organisations nationally and the advice sector regionally”. The foundation and regional trusts would provide a strategic dimension to the work of the legal profession in giving “free legal help to those who cannot afford to pay”, he added. “In time, better access to justice — less unmet legal need — will be the result.”

Baroness Scotland said that the foundation would owe no obligation or affiliation to any one case, “save the overriding cause of improving access to justice”.

Lord Goldsmith, QC, who can take credit for kick-starting the pro bono campaign when chairman of the Bar Council, said that the new fund would avoid the need for judges to order where costs should go or charities competing with each other.

It was not, he added, a replacement for legal aid but an adjunct to it that could help the many law charities and advice centres now strapped for cash.

As Jeremy Morgan, QC, of 39 Essex Street, puts it in an article on the foundation website: “The foundation is not an alternative to Community Legal Service funding, nor is it ever likely to have the resources, inclination or structure to make it so . . . rather it aims to provide financial support where most needed to organisations . . . which assist those to whom [legal aid] funding is not available.”

From now on there will be a level playing field between the pro bono litigant and his opponent, he says. And the threat of costs will be a “weapon in his armoury”, as it has been in the armoury of his opponent.

Of course, he concedes, in one sense the playing field remains uneven: pro bono litigants who lose are liable for costs, but being without funds, any order against them is more theoretical than real. So for the litigant against a pro bono opponent, it can be a “lose-lose” scenario.

Pro bono litigants should not be too gung-ho, however: there is always the threat that they can be made bankrupt. But overall, the scheme is likely to bring more opponents to the negotiating table. And that can only be good.

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