"Bringing Families Together"

"Bringing Families Together"

Tuesday, August 30, 2011

What is a McKenzie friend?

The court may allow a party in civil and family cases to have a friend or adviser to sit with them in court to give you advice and help take notes. This person is referred to as a Mackenzie friend, but they are not allowed to speak for the party in court without the permission of the Court.

In the Criminal Court and in most tribunals a party maybe represented by anyone of their own choosing. In the case of small claims hearings, the law is contained in Part 27 of the Civil Procedure Rules and a Practice Direction attached to it. This states that, at the hearing of a small claims trial, a party may be represented by:

• Him - or herself;

• A lawyer - which includes barristers, solicitors or legal executives; or,

• A lay representative. The Practice Direction defines "lay representative" as "any other person".
In most civil and Family Court hearings, the Court’s permission is required.

A party may be allowed to introduce a McKenzie friend into court to assist them. There is no right to have a McKenzie friend: the only right is that of the litigant to have reasonable assistance.
A McKenzie friend is not entitled to address the court without permission. If he does so, he becomes an advocate and requires the grant of a right of audience under s 27 of the Courts and Legal Services Act 2007.

However, generally, a litigant in person who wishes to have a McKenzie friend should be allowed to do so unless the judge is satisfied that fairness and the interests of justice do not so require and there is a strong presumption in favour of allowing the McKenzie friend (Re H (Minors) (Chambers Proceedings: McKenzie Friend) [1997] 3 FCR 618, CA & Re O (Children): Re W-R: Re W (Children) [2005] EWCA Civ 759, LTL AC0109048, Times 27.6.05

The court can prevent a McKenzie friend from continuing to act as such where the assistance given is inimical to the efficient administration of justice, for example, where the friend is indirectly running the case or using the litigant as a puppet.

The President of the Family Division has given update guidance on the issue;

On the discretion to grant rights of audience to individuals who do not meet the stringent requirements of the CLSA, the court has held that it should only be exercised in exceptional circumstances and should pause long before granting rights to individuals who made a practice of seeking to represent otherwise unrepresented litigants (principles extracted from R v Bow County Court ex p Pelling [1999] 1 WLR 1807, D v S (rights of audience) [1997] 1 FLR 724 and Noueri v Paragon Finance plc, CA, [2001] EWCA Civ 1402 (19.9.01).

SFA understanding and stance on McKenzie friends

Vagaries on McKenzie friends and self-representation.

Criminal Court. Human Rights Act article 6.3 allows legal representation of your own choosing so anyone can represent you in the trial and preliminary hearings. Open Courts. However, lay person cannot attend Police interview, you will need a solicitor or the duty Solicitor.

Employment tribunal. No need for a Mckenzie friend as anyone can represent a party in the Employment tribunal. Open Court hearings and litigant in person can charge £25 per hour for work on their own case.

Small claims Court – representation by McKenzie friend permitted.

Contrast the above with these:-

Civil and family proceedings. Right to Mckenzie friend a strong one but rights of audience in only special circumstances. Right of audience and litigation rights are separate issues. Family proceedings in closed Court but open Court of appeal and if same or similar issues aired on Judicial review; open court!

Tribunal hearings generally right to assistance and right to lay representation for example in Child benefit, DHSS and CSA tribunals. Yet this right would not exist on the same facts in Judicial Review proceedings.

Companies can appoint any employee to represent them in litigation.

Guardians have right of audience if not represented in Court.

Family proceedings and in effect any issue related to your own children is emotional, and when emotions are charged a litigant-in-person [LIP] probably does have an idiot for a client but as many have found they prefer representing themselves as at least that way they can blame no-one else for the outcome and will have tried.

A LIP can have the assistance of a McKenzie friend who can do the following;

• Provide moral support for the litigant
• Take notes
• Help with case papers
• Quietly give advice on:

- points of law or procedure;
- issues that the litigant may wish to raise in court;
- questions the litigant may wish to ask witnesses.

In Family and civil Courts the practice direction on McKenzie friends 2010 allows you to be represented by close family member e.g your husband or wife, to have lay advocate, where legal aid is denied through no fault of your own and cannot afford private representation and where the person’s health precludes them from addressing the Court AND they cannot afford private representation and where the litigant is relatively inarticulate and prompting may un-necessarily prolong proceedings. No such bars exist in the employment tribunal or other tribunals so what is so special about the Family Courts?

It maybe there is fear of McKenzie friends taking an increasing role and undermining the monopoly held by Solicitors and barristers, yet the cost of access to justice and the need for equality of arms is such that many are forced to seek other routes of representation.

Sections 27 and 28 of the Courts and Legal Services Act 1990 (the Act) respectively govern rights of audience and the right to conduct litigation. They provide the court with a discretionary power to grant unqualified persons, including MFs, such rights in relation to particular proceedings. While the court should be slow to grant any application under s.27 or s.28 of the Act from a MF, it should be prepared to do so for good reason bearing in mind the general objective set out in section 17(1) and the general principle set out in section 17(3) of the Act and all the circumstances of the case. Such circumstances are likely to vary greatly: see paragraphs 40-42 of the judgment of Munby J. in Re N (A child) (McKenzie Friend: Rights of Audience) [2008]EWHC 2042(Fam). If the litigant in person wishes the MF to be granted a right of audience or the right to conduct the litigation, an application must be made at the start of the hearing.

The Judiciary may worry about the monopoly on the bar being eroded and cost effective alternatives taking over, on legal aid a Barrister often has insufficient time to prepare for trial, is governed by the summary and outline from the acting Solicitor and which may contain inaccuracies and few litigants get to see these documents heavily influencing the portrayal of their case.

As far as McKenzie friends charging for their services go, the 2010 practice direction on McKenzie friends states;

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. BUT Note that 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.

29) 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).

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