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McKenzie Friends - overviewConcept
A McKenzie Friend is someone who supports a party acting in person in court, assisting them and providing advice to the lay person but cannot:
address the court
examine witnesses
sign court documents
Practice direction
The guidance regarding McKenzie Friends is now contained in Guidance for McKenzie Friends (Civil and Family Courts) [2010] (revising the previous 2008 direction) jointly issued in July 2010 by Lord Neuberger of Abbotsbury, Master of the Rolls, and Sir Nicholas Wall, President of the Family Division. The 2010 guidance applies to civil and family proceedings in the Court of Appeal (Civil Division), the High Court of Justice, the county court and the family proceedings court. It should be noted that the above was issued as guidance and not as a practice direction.
In the earlier 2008 practice direction the then President of the Family Division, Sir Mark Potter, commented upon the growth in the number of litigants in person at all levels in the family courts. This has naturally led to an increase in the use of McKenzie Friends and the then President went on the say that the attendance of a McKenzie Friend will often be of advantage to the court in ensuring that the litigant in person receives a fair hearing.
The 2010 guidance refers to the following:
litigants have the right to have reasonable assistance from a McKenzie Friend however litigants assisted by a McKenzie Friend remain a litigant-in-person and a McKenzie Friend has no independent right to provide assistance, act as an advocate or carry out the conduct of litigation
a McKenzie Friend may provide moral support for a litigant, take notes, help with case papers, and quietly give advice on any aspect of the conduct of the case
a McKenzie Friend may not act as the litigant's agent in relation to the proceedings, manage litigants’ cases outside court (for example by signing court documents) address the court, make oral submissions or examine witnesses
while litigants ordinarily have a right to receive reasonable assistance from a McKenzie Friend the court retains the power to refuse to permit such assistance and 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
a litigant who wishes to exercise the right to appoint a McKenzie Friend should inform the judge as soon as possible indicating who the McKenzie Friend will be
the proposed McKenzie Friend should produce a short curriculum vitae or other statement setting out relevant experience, confirming that they have no interest in the case and that they understand the McKenzie Friend role and the duty of confidentiality
Procedure
The 2010 guidance sets out a very specific procedure in relation to an application to appoint a McKenzie Friend. The provisions include:
the proposed McKenzie Friend should not be excluded from the courtroom or chambers while the application is made, and should ordinarily be allowed to assist the litigant in person to make the application
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 McKenzie Friend, it is not for the litigant to justify the exercise of the right but for the court or the objecting party to provide sufficient reasons why the litigant should not receive such assistance
If an application to appoint a McKenzie Friend is refused, the reasons for the decision should be explained carefully and fully to both the litigant in person and the proposed McKenzie Friend. While the litigant in person may appeal that refusal, the McKenzie Friend has no standing to do so.
Rights of audience
Sections 27 and 28 of the Courts and Legal Services Act 1990 govern rights of audience and the right to conduct litigation. They provide the court with a discretionary power to grant lay individuals such rights. In exceptional circumstances a court may grant an unqualified person a right of audience. The grant of an application to appoint a McKenzie Friend does not automatically confer that right, which must be considered separately by the court.
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