Practice Guidance 12 July 2010
29/04/2012 14:20
Practice Guidance: McKenzie Friends
(Civil and Family Courts)
LORD NEUBERGER MR AND SIR NICHOLAS WALL P
12 JULY 2010
Practice
– Trial – Party acting in person – Right to assistance – McKenzie friend –
Scope of right to assistance
– Guidance.
Cases referred to in practice guidance 2010
Agassi v Robinson
(Inspector of Taxes) [2005] EWCA Civ 1507, [2006] 1 All ER
900, [2006] 1 WLR 2126.
Attorney-General v Purvis
[2003] EWHC 3190 (Admin).
Chauhan v Chauhan
[1997] FCR 206, CA.
Clarkson v Gilbert
[2000] 3 FCR 10, CA.
N
(a child) (McKenzie friends: rights of audience), Re [2008] EWHC 2042 (Fam),
[2008] 3 FCR 642, [2008] 1 WLR 2743.
O
(children) (representation: McKenzie friend), Re [2005] EWCA Civ 759, [2005]
2 FCR 563 [2005] 3 WLR 1191.
R v Bow County Court, ex p Pelling
[1999] 4 All ER 751, [1999] 1 WLR 1807, CA.
R v Leicester City Justices, ex p Barrow
[1991] 3 All ER 935, [1991] 2 QB 260, [1991]
3 WLR 368, CA.
Uhbi
(t/a United Building & Plumbing Contractors) v Kajla [2002] EWCA Civ 628,
[2002] All ER (D) 265 (Apr).
Westland Helicopters Ltd v Sheikh Salah Al-Hejailan
[2004] EWHC 1688 (Comm),
[2004] 2 Lloyd’s Rep 535.
LORD NEUBERGER MR AND SIR NICHOLAS WALL P.
[1]
This guidance applies to civil and family proceedings in the Court of
Appeal (Civil Division), the High Court of Justice, the County Courts and the
Family Proceedings Court in the Magistrates’ Courts
1. It is issued as guidance
not as a Practice Direction) by the Master of the Rolls, as Head of Civil Justice,
and the President of the Family Division, as Head of Family Justice. It is
intended to remind courts and litigants of the principles set out in the
authorities and supersedes the guidance contained in
Practice Note (Family
Courts: McKenzie Friends
) (No 2) [2008] 1 WLR 2757, which is now withdrawn2.
It is issued in light of the increase in litigants-in-person (litigants) in all levels of
the civil and family courts.
References to the judge or court should be read where proceedings are taking place under the
Family Proceedings Courts (Matrimonial Proceedings etc) Rules 1991, as a reference to a justices’
clerk or assistant justices’ clerk who is specifically authorised by a justices’ clerk to exercise the
functions of the court at the relevant hearing. Where they are taking place under the Family
Proceedings Courts (Children Act 1989) Rules 1991 they should be read consistently with the
provisions of those rules, specifically r 16A(5A).
R v Leicester City Justices, ex p Barrow [1991] 3 All ER 935, [1991] 2 QB 260, Chauhan v Chauhan [1997]
FCR 206,
R v Bow County Court, ex p Pelling [1999] 4 All ER 751, [1999] 1 WLR 1807, Attorney-General
v Purvis
[2003] EWHC 3190 (Admin), Clarkson v Gilbert [2000] 3 FCR 10, Uhbi (t/a United Building &
Plumbing Contractors
) v Kajla [2002] EWCA Civ 628, [2002] All ER (D) 265 (Apr), Re O (children)
representation: McKenzie friend) [2005] EWCA Civ 759, [2005] 2 FCR 563 [2005] 3 WLR 1191, Westland
Helicopters Ltd v Sheikh Salah Al-Hejailan
[2004] EWHC 1688 (Comm), [2004] 2 Lloyd’s Rep 535,
Agassi v Robinson
(Inspector of Taxes) [2005] EWCA Civ 1507, [2006] 1 All ER 900, [2006] 1 WLR 2126,
Re N
(a child) (McKenzie friends: rights of audience) [2008] EWHC 2042 (Fam), [2008] 3 FCR 642, [2008]
1 WLR 2743.
THE RIGHT TO REASONABLE ASSISTANCE
[2]
Litigants have the right to have reasonable assistance from a lay person,
sometimes called a McKenzie Friend (MF). Litigants assisted by MFs remain
litigants-in-person. MFs have no independent right to provide assistance. They
have no right to act as advocates or to carry out the conduct of litigation.
WHAT MCKENZIE FRIENDS MAY DO
[3]
MFs may: (i) provide moral support for litigants; (ii) take notes; (iii) help
with case papers; (iv) quietly give advice on any aspect of the conduct of the
case.
WHAT MCKENZIE FRIENDS MAY NOT DO
[4]
MFs may not: (i) act as the litigants’ agent in relation to the proceedings;
(ii) manage litigants’ cases outside court, for example by signing court
documents; or (iii) address the court, make oral submissions or examine
witnesses.
EXERCISING THE RIGHT TO REASONABLE ASSISTANCE
[5]
While litigants ordinarily have a right to receive reasonable assistance
from MFs the court retains the power to refuse to permit such assistance. The
court may do so where it is satisfied that, in that case, the interests of justice
and fairness do not require the litigant to receive such assistance.
[6]
A litigant who wishes to exercise this right should inform the judge as
soon as possible indicating who the MF will be. The proposed MF should
produce a short curriculum vitae or other statement setting out relevant
experience, confirming that he or she has no interest in the case and
understands the MF’s role and the duty of confidentiality.
[7]
If the court considers that there might be grounds for circumscribing the
right to receive such assistance, or a party objects to the presence of, or
assistance given by a MF, it is not for the litigant to justify the exercise of the
right. It is for the court or the objecting party to provide sufficient reasons why
the litigant should not receive such assistance.
[8]
When considering whether to circumscribe the right to assistance or
refuse a MF permission to attend the right to a fair trial is engaged. The matter
should be considered carefully. The litigant should be given a reasonable
opportunity to argue the point. The proposed MF should not be excluded from
that hearing and should normally be allowed to help the litigant.
[9]
Where proceedings are in closed court, ie the hearing is in chambers, is in
private, or the proceedings relate to a child, the litigant is required to justify the
MF’s presence in court. The presumption in favour of permitting an MF to
attend such hearings, and thereby enable litigants to exercise the right to
assistance, is a strong one.
[10]
The court may refuse to allow a litigant to exercise the right to receive
assistance at the start of a hearing. The court can also circumscribe the right
during the course of a hearing. It may be refused at the start of a hearing or
later circumscribed where the court forms the view that a MF may give, has
given, or is giving, assistance which impedes the efficient administration of
justice. However, the court should also consider whether a firm and
unequivocal warning to the litigant and/or MF might suffice in the first
instance.
[11]
A decision by the court not to curtail assistance from a MF should be
regarded as final, save on the ground of subsequent misconduct by the MF or
Practice Guidance: McKenzie Friends 273
on the ground that the MF’s continuing presence will impede the efficient
administration of justice. In such event the court should give a short judgment
setting out the reasons why it has curtailed the right to assistance. Litigants
may appeal such decisions. MFs have no standing to do so.
[12]
The following factors should not be taken to justify the court refusing
to permit a litigant receiving such assistance:
(i) The case or application is simple or straightforward, or is, for instance,
a directions or case management hearing;
(ii) The litigant appears capable of conducting the case without
assistance;
(iii) The litigant is unrepresented through choice;
(iv) The other party is not represented;
(v) The proposed MF belongs to an organisation that promotes a
particular cause;
(vi) The proceedings are confidential and the court papers contain
sensitive information relating to a family’s affairs
[13]
A litigant may be denied the assistance of a MF because its provision
might undermine or has undermined the efficient administration of justice.
Examples of circumstances where this might arise are: (i) the assistance is being
provided for an improper purpose; (ii) the assistance is unreasonable in nature
or degree; (iii) the MF is subject to a civil proceedings order or a civil restraint
order; (iv) the MF is using the litigant as a puppet; (v) the MF is directly or
indirectly conducting the litigation; (vi) the court is not satisfied that the MF
fully understands the duty of confidentiality.
[14]
Where a litigant is receiving assistance from a MF in care proceedings,
the court should consider the MF’s attendance at any advocates’ meetings
directed by the court, and, with regard to cases commenced after 1 April 2008,
consider directions in accordance with para 13.2 of
Practice Direction: Guide to
Case Management in Public Law Proceedings
[2008] 2 FLR 668.
[15]
Litigants are permitted to communicate any information, including
filed evidence, relating to the proceedings to MFs for the purpose of obtaining
advice or assistance in relation to the proceedings.
[16]
Legal representatives should ensure that documents are served on
litigants in good time to enable them to seek assistance regarding their content
from MFs in advance of any hearing or advocates’ meeting.
[17]
The High Court can, under its inherent jurisdiction, impose a civil
restraint order on MFs who repeatedly act in ways that undermine the efficient
administration of justice.
RIGHTS OF AUDIENCE AND RIGHTS TO CONDUCT LITIGATION
[18]
MFs do not have a right of audience or a right to conduct litigation. It is
a criminal offence to exercise rights of audience or to conduct litigation unless
properly qualified and authorised to do so by an appropriate regulatory body
or, in the case of an otherwise unqualified or unauthorised individual (ie a lay
individual including a MF), the court grants such rights on a case-by-case basis3.
[19]
Courts should be slow to grant any application from a litigant for a right
of audience or a right to conduct litigation to any lay person, including a MF.
This is because a person exercising such rights must ordinarily be properly
trained, be under professional discipline (including an obligation to insure
Legal Services Act 2007, ss 12–19, Sch 3.
274 All England Law Reports [2010] 4 All ER
against liability for negligence) and be subject to an overriding duty to the
court. These requirements are necessary for the protection of all parties to
litigation and are essential to the proper administration of justice.
[20]
Any application for a right of audience or a right to conduct litigation to
be granted to any lay person should therefore be considered very carefully. The
court should only be prepared to grant such rights where there is good reason
to do so taking into account all the circumstances of the case, which are likely
to vary greatly. Such grants should not be extended to lay persons
automatically or without due consideration. They should not be granted for
mere convenience.
[21]
Examples of the type of special circumstances which have been held to
justify the grant of a right of audience to a lay person, including an MF, are: (i)
that person is a close relative of the litigant; (ii) health problems preclude the
litigant from addressing the court, or conducting litigation, and the litigant
cannot afford to pay for a qualified legal representative; (iii) the litigant is
relatively inarticulate and prompting by that person may unnecessarily prolong
the proceedings.
[22]
It is for the litigant to persuade the court that the circumstances of the
case are such that it is in the interests of justice for the court to grant a lay
person a right of audience or a right to conduct litigation.
[23]
The grant of a right of audience or a right to conduct litigation to lay
persons who hold themselves out as professional advocates or professional MFs
or who seek to exercise such rights on a regular basis, whether for reward or
not, will however
only be granted in exceptional circumstances. To do
otherwise would tend to subvert the will of Parliament.
[24]
If a litigant wants a lay person to be granted a right of audience, an
application must be made at the start of the hearing. If a right to conduct
litigation is sought such an application must be made at the earliest possible
time and must be made, in any event, before the lay person does anything
which amounts to the conduct of litigation. It is for litigants to persuade the
court, on a case-by-case basis, that the grant of such rights is justified.
[25]
Rights of audience and the right to conduct litigation are separate
rights. The grant of one right to a lay person does not mean that a grant of the
other right has been made. If both rights are sought their grant must be
applied for individually and justified separately.
[26]
Having granted either a right of audience or a right to conduct
litigation, the court has the power to remove either right. The grant of such
rights in one set of proceedings cannot be relied on as a precedent supporting
their grant in future proceedings.
REMUNERATION
[27]
Litigants can enter into lawful agreements to pay fees to MFs for the
provision of reasonable assistance in court or out of court by, for instance,
carrying out clerical or mechanical activities, such as photocopying documents,
preparing bundles, delivering documents to opposing parties or the court, or
the provision of legal advice in connection with court proceedings. Such fees
cannot be lawfully recovered from the opposing party.
[28]
Fees said to be incurred by MFs for carrying out the conduct of
litigation, where the court has not granted such a right, cannot lawfully be
recovered from either the litigant for whom they carry out such work or the
opposing party.
Practice Guidance: McKenzie Friends 275
Fees said to be incurred by MFs for carrying out the conduct of
litigation after the court has granted such a right are in principle recoverable
from the litigant for whom the work is carried out. Such fees cannot be
lawfully recovered from the opposing party.
[30]
Fees said to be incurred by MFs for exercising a right of audience
following the grant of such a right by the court are in principle recoverable
from the litigant on whose behalf the right is exercised. Such fees are also
recoverable, in principle, from the opposing party as a recoverable
disbursement: CPR 48.6(2) and 48(6)(3)(ii).
