APPLICATION FOR A MCKENZIE FRIEND

The latest case on this is at http://www.bailii.org/ew/cases/EWCA/Civ/2005/759.html
[2005] EWCA Civ 759
  >
  >
  > Court of Appeal, Civil Division
  > Thorpe and Wall LJJ
  > 22 June 2005
  >
  >
  > Children - Care proceedings - Legal representation of parties -
  > Instruction
  > of McKenzie friend - Disclosure of documents to McKenzie friend -
  > Disclosure
  > to outside bodies.
  >
  >
  > (1) The purpose of allowing a litigant in person the assistance of a
  > McKenzie friend is to further the interests of justice by achieving a
  > level
  > playing field and ensuring a fair hearing. The court endorses the
  > proposition that the presumption of allowing a litigant in person the
  > assistance of a McKenzie friend is very strong, and that such a request
  > should only be refused for compelling reasons, which a judge should
  > identify
  > and explain fully. The following do not constitute compelling reasons:
  > that
  > the litigant in person appears to be of sufficient intelligence to be able
  > to conduct the case on his own; the fact that the litigant appears to have
  > sufficient mastery of the facts and documentation; the fact that the
  > hearing
  > is a directions or case management appointment; or the fact that the
  > proceedings are confidential. Where a litigant in person wishes to
  > have the
  > assistance of a McKenzie friend in private family law proceedings relating
  > to children, the sooner that intention is made known to the court and the
  > sooner the court's agreement is obtained, the better, and it is preferable
  > if the same McKenzie friend appears throughout. It is not good practice to
  > exclude the proposed McKenzie friend from the courtroom or chambers whilst
  > the application by the litigant in person for his assistance is being
  > made,
  > as the litigant is likely to need the assistance of such a friend to make
  > the application in the first place. Furthermore, it is helpful for the
  > proposed McKenzie friend to be present so that any concerns about him
  > can be
  > ventilated in his presence, so that the judge fully understands his
  > role and
  > that the McKenzie friend will abide by the court's procedural rules.
  > It will
  > always be helpful for the court if the proposed McKenzie friend can
  > produce
  > either a short curriculum vitae or statement about himself, confirming
  > that
  > he has no personal interest in the case, and that he understands both the
  > role of the McKenzie friend and the court's rules as to confidentiality.
  >
  >
  > (2) It is difficult to describe a court sanctioned McKenzie friend as 'the
  > public at large or any section of the public' for the purposes of s
  > 62(1) of
  > the Children Act 2004, and therefore there is no reason in principle why a
  > litigant in person should not disclose the court papers to his court
  > sanctioned McKenzie friend. At the same time, however, the McKenzie friend
  > must appreciate that disclosure is being made for the purpose of enabling
  > the litigant in person effectively to present his case and thus to
  > ensure a
  > fair hearing. Emphasis needs to be placed not only on the purpose for
  > which
  > disclosure of the information is required, but also the use to which the
  > person receiving the information puts it. The judge should ensure, as a
  > matter of practice, that whenever an application is made by a litigant in
  > person for the assistance of a McKenzie friend, both the litigant in
  > person
  > and the McKenzie friend express their clear understanding of the role
  > of the
  > McKenzie friend and in particular the responsibility which the McKenzie
  > friend has in relation to ensuring the documents are being disclosed
  > to him
  > for the sole purpose of assisting the litigant in person. The court should
  > require an assurance from both the litigant in person and the McKenzie
  > friend that the documents will be used only for the purpose of the
  > proceedings. A formal undertaking is not required, but the McKenzie friend
  > will need to understand that he will remain in contempt if he
  > publishes the
  > disclosed information to the public at large or a section of the public
  > without permission of the court. It should not, however, be considered a
  > contempt of court for a litigant in person to seek advice prior to any
  > application to the court from a proposed McKenzie friend, or to show court
  > documents to the person from whom the advice is being sought, so long as
  > that person appreciates that they are being shown for the purpose of
  > giving
  > advice and that wider dissemination is not permissible. Once the McKenzie
  > friend has been accepted by the court, and appropriate assurance given
  > about
  > the use of documents, orders for disclosure of documents to McKenzie
  > friends
  > should not be necessary.
  >
  >
  > (3) There is no objection in principle to disclosure of court
  > documents to a
  > public authority with a proper interest in the subject matter of the
  > disclosure. Such a body would not seem to be either 'the public at
  > large or
  > any section of the public' and would have a public duty only to use the
  > documents for an appropriate statutory purpose. If a body such as the
  > local
  > government ombudsman takes the view that it had no jurisdiction to
  > investigate the complaint it will no doubt say so, and return the papers.
  >
  >
  > The three appellants appeared in person.
  >
  > Meena Gill for the respondent in the case of W-R.
  >
  > Duncan Watson for the respondent in the case of W.
  >
  > Robin Spon-Smith as advocate to the court.
  >
  >
  >
  > Rachael Ramez   Barrister.
  >

0) RIGHT TO A FAIR HEARING
The Applicant applies for a McKenzie Friend to assist him by taking notes and quietly advising. He has need of such assistance in order to present his case efficiently and correctly, to help him deal with unexpected points that may come up in the course of the hearing, and in any event to take notes of the proceedings - essential in the event of an appeal. As a litigant in person he considers he would not have a fair hearing if deprived of the reasonable assistance he needs. Article 6(1) European Convention on Human Rights, now in force in English law by virtue of the Human Rights Act 1998, guarantees the right to a fair hearing:-
“6(1) In the determination of his civil rights and obligations……, everyone is entitled to a fair hearing…. by an independent and impartial tribunal established by law”.
This includes pre-trial procedures and hearings which affect the overall fairness of the proceedings which determine civil rights and obligations.

1) PRINCIPLE OF REASONABLE ASSISTANCE BASED ON FAIRNESS
This derives from R v. Leicester City Justices ex parte Barrow & Another [1991] 2QB 260 CA. Lord Donaldson MR observed that the applicants in this case had the right to be heard and said:

285F “Fairness, which is fundamental to all court proceedings, dictated that they should be given all reasonable facilities for exercising this right [to be heard] and, in cases of doubt, they should be given the benefit of that doubt for the courts must not only act fairly, but be seen to act fairly”. Also:

285H/286A “The only right is that of the litigant and his right is to reasonable assistance, which can take many forms”.

289A “A party to proceedings has a right to present his own case and in so doing to arm himself with such assistance as he thinks appropriate, subject to the right of the court to intervene. …. (289D) But if a party arms himself with assistance in order the better himself to present his case, it is not a question of seeking the leave of the court. It is a question of the court objecting and restricting him in the use of this assistance, if it is clearly unreasonable in nature or degree or if it becomes apparent that the “assistance” is not being provided bona fide, but for an improper purpose or is being provided in a way which is inimical to the proper and efficient administration of justice.”

2) ASSISTANCE EVEN IN SIMPLE CASES
The Court in Leicester City Justices rejected the idea that a party should be denied McKenzie Friend assistance because the issues are simple and straightforward. Lord Donaldson MR said in this context at 289H/290A:

290A “That is not, however the point. The point is that it is not for the court to consider in advance whether the applicant needs assistance. Unless there are clear grounds, in the interests of the proper administration of justice, for denying the applicants such assistance as Mr John [McKenzie Friend] could provide, it suffices that the applicants should have thought they needed it”;

to which Staughton LJ added at 291E: “I do not see that it can be in the interests of justice to prevent someone giving this sort of assistance merely because the case is thought by the judge to be simple”.

3) CHAMBERS PROCEEDINGS
In R v. Bow County Court ex parte Pelling [1999] 2FLR 1126 CA the Court of Appeal considered the position in chambers proceedings but affirmed the principles of Leicester City Justices (quoting all the above and more, bar 290A) subject to certain qualifications. The Court recognised the discretion of the judge in chambers as to whom he would admit - Re G (Chambers Proceedings: McKenzie Friend) [1999] 2FLR 59 CA - but observed (1132BC) there was also a discretion to exclude a McKenzie Friend in open court, the difference being one of degree, as in open court members of the public are entitled to be present. Lord Woolf MR then said at 1132D:

“In general, we would stress as did Lord Donaldson, that it is fairness and the achievement of justice which is in play here. A litigant in person has an entitlement to be heard and if he or she needs assistance for this purpose, then the court should not, unless there is reason, deprive that person of that assistance”.

Thus the Court of Appeal in R v. Bow County Court upheld the principle of reasonable assistance based on fairness to the litigant, of which he is only to be deprived for cause. The Court recognised that reasons to deprive could arise in chambers which would not in open court, and went on immediately to say at 1132E:

“There are many considerations which can arise in chambers to make the presence of a McKenzie friend inappropriate when that presence would be appropriate in open court.
The proceedings can be confidential. The particular McKenzie Friend may encourage an adversarial approach which is inappropriate to family proceedings. The behaviour of the McKenzie Friend may be inimical to the judge conducting the litigation in the manner which he considers is the most satisfactory way in which to do justice”.

4) REASONS TO BE GIVEN FOR EXCLUSION
Consistent with holding that a court should not deprive a person of assistance unless there is a reason, the Court of Appeal went on to hold that a judge should give reasons for refusing to allow a litigant in person the assistance of a McKenzie Friend: 1133E - 1134B and 1134H. Hence a blanket policy of a particular court or judge of automatically excluding McKenzie Friends in all Children Act cases (or other categories of case) would be unlawful. Mere confidentiality would not be sufficient; there would have to be evidence of prejudice to the proper administration of justice or the interests of justice on account of that confidentiality. Indeed, the Court in summarising its conclusions said at 1134H:

(3) “Where the proceedings are in private then the nature of the proceedings which make it appropriate for them to be heard in private may make it undesirable in the interests of justice for a McKenzie Friend to assist”.

Provided the McKenzie Friend recognises he is bound by the same duty of confidentiality which binds the litigant there should normally be no objection. Usually the Friend will already, as an assistant to the party, be familiar with the case.

5) EQUALITY OF ARMS
This principle has never been approved as justifying depriving a person of legal assistance; it is a levelling up, not a levelling down, principle. Thus, notwithstanding the “level playing field” envisaged by Rule 1.1(2)(a) Civil Procedure Rules 1998 (Overriding Objective), Maltez v. Lewis [1999] TLR 4/5/99 Ch.D held: “It was a fundamental right of every citizen to choose his or her own counsel … the right to choose an advocate or solicitor was well established and an important ingredient of any free society”. That applies a fortiori to lesser forms of legal assistance such as a McKenzie Friend. The court, the litigant, and justice itself, are not helped when a case is presented less effectively through lack of assistance. It is the other party’s own choice and responsibility if she conducts her case with no assistance of any kind, but the court of course can still ensure fair play.
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