Toby Brown writes about the Access to Justice campaign concerning awareness of the recoverability of pro bono costs. This is a major advance in support of pro bono litigation. However, he failed to mention the biggest impediment to the initiation of much pro bono litigation, which is the threat of adverse costs.

Many cases brought on behalf of the poor and disadvantaged may seek to establish new principles. As such they may fail to qualify for legal aid funding, since the outcome is speculative and they are also unable to satisfy the high threshold set for defining public-interest litigation for legal aid purposes.

Protective costs orders are available but very difficult to obtain, and are only available after litigation starts. Those with no resources cannot take the risk of incurring any liability for costs.

Sometimes government departments will agree not to seek adverse costs orders, but this is not guaranteed. I wonder how long this practice will last in the new age of austerity.

The poor and disadvantaged are about to suffer a massive loss of existing rights of all kinds. Legal aid will no longer be available for challenges to most aspects of this new regime. Pro bono litigation may be all that is left to ensure that the rule of law is still applied to state action against those who cannot afford legal representation. A concerted effort is required within the legal profession to ensure there is a safety net available, so that pro bono cases can be taken against the state without risk to impecunious claimants.

Joanna Kennedy , chief executive, Zacchaeus 2000 Trust, London SW1