Where one party in an ancillary relief claim was not entitled to legal aid, but showed a need for legal representation which he or she could not afford, the court could make an order requiring the other party to make a costs allowance. The nature of the husband’s application here was defensive, and the order should remain, though: ‘Whenever a court decided to make a costs allowance, it ought to proceed with a judicious mixture of realism and caution as to both its amount and duration.’
Wilson LJ referred to the danger that a decision-maker’s attempt to explain his decision in terms which include reference to exceptionality would give rise to the subsequent elevation of a concept of exceptionality as the governing criterion: ‘In my view the initial, overarching inquiry is into whether the applicant for a costs allowance can demonstrate that she cannot reasonably procure legal advice and representation by any other means. Thus, to the extent that she has assets, the applicant has to demonstrate that they cannot reasonably be deployed, whether directly or as the means of raising a loan, in funding legal services. Furthermore . . she has also to demonstrate that she cannot reasonably procure legal services by the offer of a charge upon ultimate capital recovery.’
As regards the request for a costs allowance: ‘In my view the initial, overarching inquiry is into whether the applicant for a costs allowance can demonstrate that she cannot reasonably procure legal advice and representation by any other means. Thus, to the extent that she has assets, the applicant has to demonstrate that they cannot reasonably be deployed, whether directly or as the means of raising a loan, in funding legal services. Furthermore . . she has also to demonstrate that she cannot reasonably procure legal services by the offer of a charge upon ultimate capital recovery.’
Judges:
Chadwick LJ, Wilson LJ, Lindsay J
Citations:
Times 03-Nov-2006, [2007] Fam Law 12, [2007] 2 Costs LR 227, [2007] 1 FLR 946, [2006] EWCA Civ 1338
Links:
Jurisdiction:
England and Wales
Citing:
See Also – Currey v Currey CA 8-Dec-2003
Appeals against ancillary relief orders and costs orders. The husband complained that the judge had in effect taken over the case asking leading questions of the parties.
Held: The judge’s task in a family matter was to obtain an accurate . .
Cited – Barder v Caluori HL 2-Jan-1987
In divorce proceedings, the husband had transferred his interest in the matrimonial home to the wife who had been awarded care and control of the two children of the family. The order was made on 20 February 1985 and on 25 March the wife unlawfully . .
Cited – A v A (Maintenance Pending Suit: Payment of Legal Fees) FD 2001
The court made an order to provide that the monies paid by way of maintenance pending suit in respect of any matter can be brought into account by the judge making the order in the ancillary relief proceedings. . .
Cited by:
Cited – In re F (Children) CA 27-Oct-2010
The mother appealed against refusal of a specific issue order requested to allow her to remove the four children with her from Cleveland to Stronsay in the Orkneys. Both parents were GPs and accepted to be excellent parents. She and her new partner . .
Cited – Rubin v Rubin FD 10-Mar-2014
The court heard an application by the wife for a legal services payment order. . .
Cited – Wyatt v Vince SC 11-Mar-2015
Long delayed ancillary relief application proceeds
The parties had divorced some 22 years before, but no ancillary relief order had been made to satisfy the application outlined in the petition. The parties when together had lived in relative poverty, but H had subsequently become wealthy. W applied . .
Lists of cited by and citing cases may be incomplete.
Family, Costs
Updated: 08 July 2022; Ref: scu.246714