To ensure assistance of a McKenzie

In open court - where the public have a right to observe proceedings - there is a virtually unfettered common law right to a McKenzie friend.

Until recently, in Chambers Proceedings (i.e secret), where the public have no automatic right to observe, the situation was muddled and unclear; however judges took the view that they had absolute discretion to bar a McKenzie Friend. Effectively it was totally up to the judge.

In R v. Bow County Court ex parte Pelling [1999] the Court of Appeal held that a judge must give reasons if a McKenzie is excluded.

In Hill v. Hester - Re H - the Court of Appeal allowed Dr Pelling to assist Chris Hill. They considered that the judge in the lower court had not given a good reason to exclude him.

The above shows the development of common law.

Firstly the Court of Appeal says:- Give reasons for exclusion.

Secondly, when a reason is challenged, they examine it and throw it out if it's not a good reason.

So now a determined litigant in person can almost always secure the assistance of a McKenzie in family proceedings.

The belt and braces way to do this is to write to the court before the hearing and tell them you'll be bringing a McKenzie and that if they object you will require a preliminary hearing so that the issue can be considered . If at this hearing it is decided that your McKenzie will be admitted, all well and good; if not, and the reason seems bogus, immediately appeal (to the circuit judge if initially before a district judge; to the Court of Appeal if initially before a circuit judge). Until the McKenzie issue is decided the main hearing will be suspended.

The flying by the seat of the pants method is to arrive at court with your McKenzie and if he is not admitted explain to the judge that without your McKenzie you will not take any further part in the proceedings and immediatly appeal to the higher court (circuit judge/Court of Appeal).

It's no good taking part in the hearing and then appealing, because the higher court will probably find that although you did not have the assistance of a McKenzie you were not prejudiced!

Incidentally, if you are appealing to a circuit judge, and you still fail, you can always try and appeal to the Court of Appeal.

You have an automatic right of appeal from district judge to circuit judge, i.e you will get the chance to argue your case in the higher court.

You do not have an automatic right from a circuit judge to the Court of Appeal. If the circuit judge refuses to grant you an appeal to the Court of Appeal, you can apply directly to the Court of Appeal for leave to appeal, i.e you can ask their permission to appeal to them - this will entail a mini hearing in its own right.

Bernard Greenwoodd 24/1/02


Warning for fathers -

the right to a McKenzie friends is now governed by three principles :-

1 McKenzie friend has no right to act as such - only right is that of a litigant to have reasonable assistance.

2 McKenzie friend is not entitled to address the court

3 As a general rule litigant has a right to a McKenzie friend but only at the judges discretion.

Only a member of the organisation constructed under statute e.g. the law society - no one else has the right to assist in submission of application bundles etc - Anyone else can be charged with contempt of court

Litigants can submit applications BUT

A there is a move on how many times they will be allowed - another words if the judge feels that enough is enough, then that will bring your action to an end. Three strikes and you're out!

B There will be a list containing names of certain people who the Lord Chancellor's Department feel must never be allowed near the court - at the moment there are six people earmarked for this honour

For more details see: Paragon Finance PLC v R H Noueiri, 2001 EWCA Civ 1402

Shaun O'Connell   28/1/2004