McKenzie friend practice guidance 2010
04/11/2011 13:47
Practice Guidance: McKenzie Friends (Civil and Family Courts)
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[2008] 1 WLR 2757, which is now withdrawn.2 It is issued in
light of the increase in litigants-in-person (litigants) in all levels of the civil and
family courts.
The Right to Reasonable Assistance
2) Litigants have the right to have reasonable assistance from a layperson, sometimes
called a McKenzie Friend (MF). Litigants assisted by MFs remain litigants-inperson.
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
1
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
(Childrens Act 1989) Rules 1991 they should be read consistently with the provisions of those Rules,
specifically rule 16A(5A).
2
R v Leicester City Justices, ex parte Barrow [1991] 260, Chauhan v Chauhan [1997] FCR 206, R v
Bow County Court, ex parte Pelling
[1999] 1 WLR 1807, Attorney-General v Purvis [2003] EWHC
3190 (Admin),
Clarkson v Gilbert [2000] CP Rep 58, United Building and Plumbing Contractors v
Kajla
[2002] EWCA Civ 628, Re O (Children) (Hearing in Private: Assistance) [2005] 3 WLR 1191,
Westland Helicopters Ltd v Sheikh Salah Al-Hejailan (No 2)
[2004] 2 Lloyd’s Rep 535. Agassi v
Robinson (Inspector of Taxes) (No 2)
[2006] 1 WLR 2126, Re N (A Child) (McKenzie Friend: Rights of
Audience) Practice Note
[2008] 1 WLR 2743.
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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, i.e. 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 a 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 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
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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 1.4.08, consider directions in
accordance with paragraph 13.2 of the Practice Direction Guide to Case
Management in Public Law Proceedings.
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 (i.e., a lay individual
including a MF), the court grants such rights on a case-by-case basis.
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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 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.
3
Legal Services Act 2007 s12 – 19 and Schedule 3.
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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 a 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.
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.
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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).
Personal Support Unit & Citizen’s Advice Bureau
31) Litigants should also be aware of the services provided by local Personal Support
Units and Citizens' Advice Bureaux. The PSU at the Royal Courts of Justice in
London can be contacted on 020 7947 7701, by email at
cbps@bello.co.uk or at
the enquiry desk. The CAB at the Royal Courts of Justice in London can be
contacted on 020 7947 6564 or at the enquiry desk.
Lord Neuberger of Abbotsbury, Master of the Rolls
Sir Nicholas Wall, President of the Family Division
12 July 2010