Maria Henty appeared successfully for the husband in CR v CO [2025] EWFC 494 (B), securing the dismissal of the wife’s application for permission to appeal, together with a civil restraint order and, notably, a pro bono costs order.

In CR v CO [2025] EWFC 494 (B), His Honour Judge Hess made a pro bono costs order following the dismissal of the wife’s application for permission to appeal and the making of a civil restraint order against her.

This judgment is significant because it provides a clear example of the exercise in the Family Court of the statutory power under s.194 of the Legal Services Act 2007. Under s.194(3), where a party has been represented free of charge, the court may order payment to the prescribed charity in respect of that representation. By s.194(4), the court must consider whether, had the representation not been provided pro bono, it would have made an inter partes costs order, and if so, on what terms. The provision expressly applies to the Family Court by virtue of s.194(10).

Its significance is clearer still when read alongside Mahmoud v Glanville [2025] EWHC 2395 (Fam). In that case, Mr Justice MacDonald explained that the jurisdiction under s.194 extends to family proceedings, while recognising that costs orders in such proceedings remain exceptional. At paragraph 18, he stated that the approach to a pro bono costs order in children proceedings will be “broadly the same” as the approach to costs generally in such cases. At paragraph 19, he said that the court must decide whether, applying the ordinary principles governing costs in children proceedings, a costs order would have been justified and, if so, assess the equivalent amount in pro bono costs. At paragraphs 31 to 33, MacDonald J made clear that the jurisdiction remains available where the conduct of the litigation is sufficiently unreasonable or reprehensible to justify a departure from the usual no-costs position.

In CR v CO, HHJ Hess applied that approach in a practical Family Court setting. He observed that an N260 had been prepared, that the wife had been warned in advance that such an application would be made, and that she could have withdrawn the appeal but chose not to do so. HHJ Hess concluded that “the factors which justify a pro bono costs order are absolutely made out in this case” and that this was “classically a case where the jurisdiction requirements, procedural requirements, and also the merit requirements are absolutely in place.” He therefore ordered the wife to pay £4,000 to the Access to Justice Foundation within 28 days. VAT does not apply to pro bono costs orders.

The decision is also useful at a practical level. It shows that, even in a jurisdiction where costs orders remain exceptional, the court will make a pro bono costs order where the statutory criteria are met, the ordinary costs principles would justify such an order, and the application is properly evidenced and fairly advanced. In CR v CO, those features were all present: the wife had prior notice of the application, an N260 had been prepared, and the appeal lacked merit. The court accepted Miss Henty’s submissions that the application should be limited to counsel’s fee of £4,000 and that the sum to be paid to the Access to Justice Foundation. The order therefore provides a clear example of the measured and proportionate exercise of the statutory power.

The decision is significant because it confirms that s.194 of the Legal Services Act 2007 is a real and workable remedy in the Family Court. It shows that pro bono representation does not prevent the court from imposing an effective costs consequence where litigation has been pursued without merit and where the other party is otherwise not incurring legal fees. It also reflects the statutory purpose identified in Mahmoud v Glanville: that a party should not gain an advantage because the other side has been represented free of charge, and that the resulting payment should support wider access to justice.

This result also reflects Maria Henty’s longstanding commitment to pro bono work, for which she has been nominated for Junior Pro Bono Barrister of the Year at the Advocate Bar Pro Bono Awards 2026. It is also consistent with chambers’ wider commitment to pro bono representation and to ensuring access to justice for those who might otherwise be unable to obtain legal assistance. The order made in CR v CO further underlines the public value of that work, since payments under s.194 of the Legal Services Act 2007 are made to the Access to Justice Foundation, a charity which distributes funds to support organisations providing free legal advice and assistance to those most in need.

This case summary was prepared by Probationary Tenant Natalya Evans