||All England Reporter
|| All ER (D) 218 (Oct)
|| EWCA Civ 1338
||Court of Appeal, Civil Division
Chadwick, Wilson LJJ and Lindsay J
||Nicholas Francis QC and Nicholas Allen (instructed by Charles Russell) for the husband.
||Valentine Le Grice QC (instructed by Miles Preston & Co) for the wife.
||18 October 2006
Divorce - Financial provision - Variation of order - 'Big money' case - Funding for litigation - Judge ordering variation of order to fund litigation of poor spouse - Whether judge applying correct test - Whether exercise of discretion by judge to be impugned.
In a 'big money' case when determining whether a poor spouse should be awarded a costs allowance to challenge their rich spouse's application for a clean break order, the initial overarching inquiry would be whether the applicant for a costs allowance could demonstrate that he-she could not reasonably procure legal advice and representation by any other means. Thus, to the extent that he-she had assets, the applicant had to demonstrate that they could not reasonably be deployed, whether directly or as the means of raising a loan, in funding legal services. Furthermore, he-she had also to demonstrate that he or she could not reasonably procure legal services by the offer of a charge upon ultimate capital recovery. The court also would need to be satisfied that there was no public funding available to the applicant as would furnish him-her with legal advice and representation at a level of expertise apt to the proceedings. When exercising the discretion other factors might also come into play which would on occasions lead the court to decline to make it notwithstanding the demonstration. The subject-matter of the proceedings would always be relevant, and, insofar as it could safely be assessed at so early a juncture, the reasonableness of the applicant's stance in the proceedings. So would a variety of other features such as whether the applicant already owed money to the spouse in respect of costs.
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