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30 OCT 2006

ANCILLARY RELIEF: Currey v Currey [2006] EWCA Civ 1338

(Court of Appeal; Chadwick and Wilson LJJ and Lindsay J; 18 October 2006)

The word 'exceptional' was obstructing the proper exercise of the jurisdiction to include a costs allowance within an order for interim periodical payments. The initial overarching enquiry was into whether the applicant for the costs allowance could demonstrate that he or she could not reasonably procure legal advice by any other means. Although this was a necessary condition of making an allowance, it would not always be a sufficient condition. The subject-matter of the proceedings would always be relevant, as would the reasonableness of the applicants stance in the proceedings. A variety of other features might also be relevant, such as, in the instant case, the fact of a pre-existing costs debt owed by the applicant to the former spouse. Contrary to a dictum in TL v ML (Ancillary Relief: Claim Against Assets of Extended Family) [2005] EWHC 2860 (Fam), [2006] 1 FLR 1263, the judge who presided over the financial dispute resolution (FDR) appointment could not hear an application to extend such a costs allowance beyond the FDR, as that would amount to further involvement, prohibited under r 2.61E(2) and (8) of the Family Proceedings Rules 1991.

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