Thursday Law Report: McKenzie friend has no right to assist

11 March 1999 Regina v Bow County Court, ex parte Pelling Queen's Bench Division, Divisional Court (Lord Justice Otton and Mrs Justice Steel) 1 March 1999
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A JUDGE had a discretion whether to allow a McKenzie friend to assist a litigant in person in family proceedings heard in chambers.

The Divisional Court dismissed the application of Dr Michael Pelling for judicial review of the decision of a judge in the Bow County Court to refuse to allow him to act as a McKenzie friend in family proceedings heard in chambers.

The applicant was an experienced participant in family disputes, often, but not invariably, as a campaigner for the rights of fathers and their children. On a number of previous occasions he had acted as a McKenzie friend to litigants and had sought the right to represent litigants who were otherwise without representation.

On 9 December 1997 he sought to assist a friend, Mr Greenwood, on an ex parte application in chambers at Bow County Court. The judge who was due to hear the application indicated that he would not permit the applicant to do so.

The applicant sought judicial review of that decision, asserting that he had a sufficient interest in litigation as a professional McKenzie friend providing a regular service to appear in open court and in chambers when required to do so by litigants in person. He contended that a McKenzie friend was a well-defined entity with a well- recognised status and rights, and that he had the same right to appear in court as a barrister or solicitor. A judge had no power to exclude him, in the absence of misconduct.

The applicant appeared in person; Rabinder Singh (Treasury Solicitor) for the respondent.

Lord Justice Otton said that at the start of the appeal hearing a question had arisen as to whether the applicant had any locus standi to make the application. If he had the right for which he contended, he would have locus standi.

The status of a McKenzie friend had first been recognised in Collier v Hicks [1831] 2 B & Ad 663, in which it was said that:

Any person, whether he be a professional man or not, may attend as a friend of either party, may take notes, may quietly make suggestions, and give advice; but no one can demand to take part in the proceedings as an advocate, contrary to the regulations of the court as settled by the discretion of the justices.

In G (A Minor) (unreported, 10 July 1991), in which the judge had refused to allow a McKenzie friend to assist in wardship proceedings held in chambers, the Court of Appeal held that, although there were no doubt many cases in which a judge would find it proper to exercise his discretion in favour of allowing a McKenzie friend to be in chambers, it was a matter for the judge to have control over whom he permitted to remain.

The judgment in R v Leicester City Justices, ex p Barrow [1991] QB 260 conclusively refuted the applicant's case that he had a "right" to act as a McKenzie friend. He had a right as a member of the public to be present in open court and nothing more. The right to assistance was that of the litigant in person who asked the court for such assistance to be given. If the application of the litigant in person was refused, it was he, and not the McKenzie friend, who had the right to challenge that refusal.

The fact that a McKenzie friend called himself a professional McKenzie friend and acted for reward did not create a right over and above his right as a member of the public, and a member of the public had no right to be present in chambers proceedings.

The decision in G (A Minor) was particularly in point with regard to the applicant's case. It was authority for the proposition that in family matters in chambers the judge had a discretion whether or not to allow a McKenzie friend to assist a litigant in person. The decision was not, as the applicant contended, confined to wardship proceedings, but clearly extended to other chambers hearings.

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