Dr Michael Pelling

The Times Wednesday 18 August 1999

LAW REPORT: COURT OF APPEAL

No right to lay adviser in private cases

Before Lord Woolf, Master of the Rolls, Lord Justice Brooke and Lord Justice Robert Walker

A litigant in person should be allowed to have the assistance of a lay adviser, or McKenzie friend (McKenzie v McKenzie ([1971] P 33)) in proceedings in open court or in chambers, except where the proceedings were in private, unless the judge was satisfied that fairness and the interests of justice did not require the litigant to have such assistance.

Where proceedings were in private it might be undesirable in the interests of justice, because of the nature of the proceedings, for a McKenzie friend to assist.

A judge should give reasons for refusing to allow a litigant in person the assistance of a McKenzie friend.

The Court of Appeal so held in a reserved judgment dismissing the appeal of Michael John Pelling against the dismissal by the Queen's Bench Divisional Court (Lord Justice Otton and Mrs Justice Steel) (The Times March 8, 1999) of his application for judicial review of the refusal of Judge Goldstein at Bow County Court on December 9, 1997 to permit him to act as a McKenzie friend to a litigant in person in chambers in a family case.

Mr Pelling in person; Mr Rabinder Singh for Bow County Court.

THE MASTER OF THE ROLLS, giving the judgment of the court, said that the litigant in person had made an ex parte application concerning contact arrangements with his son. The application was in connection with transport difficulties.

At court, the court manager told the litigant in person that Judge Goldstein would not let Mr Pelling into court to assist him as a McKenzie friend. No explanation had been given for the judge's refusal.

Mr Pelling was an experienced participant in family disputes often, but not invariably, as a campaigner for the rights of fathers and their children in such disputes.

He derived about a third of his income from acting as a McKenzie friend. Another third was earned through his employment as a clerk to a practising solicitor.

The litigant in person's application in the present case was very straightforward. He could not have been prejudiced in any way by not having had the assistance of Mr Pelling.

The court considered McKenzie v McKenzie; In re G (a Minor) (unreported, July 10, 1991) and R v Leicester City Justices, Ex parte Barrow ([1991] 2 QB 260) and stressed: (i) that the authorities laid down that a McKenzie friend had personally no rights with regard to litigation, it was the litigant who had the rights; (ii) that a McKenzie friend had no right to be an advocate; (iii) that both in proceedings in chambers and in proceedings in open court, the court had a discretion to exclude a McKenzie friend; (iv) that the difference between the position in open court and in chambers was one of degree.

That was because in open court a member of the public had, subject to the question of room, an entitlement to be present while in the case of a hearing in chambers he or she did not have that entitlement.

In an open court hearing, there usually had to be some justification if a person was not to have the benefit of the assistance of another person, or some evidence that that person had previously acted inappropriately, or was acting inappropriately, which made it reasonable for the court to deprive the litigant of the assistance which would otherwise be provided.

In general, the court would stress that it was fairness and the achievement of justice which was in play here. A litigant in person had an entitlement to be heard and if he needed assistance for that purpose, then the court should not, unless there was reason, deprive him of that assistance.

There were many considerations which could arise in chambers to make the presence of a McKenzie friend inappropriate when that presence would be appropriate in open court.

The proceedings could be confidential. The particular McKenzie friend might encourage an adversarial approach which was inappropriate to family proceedings. The behaviour of the McKenzie friend might be inimical to the judge conducting the litigation in the manner which he or she considered was the most satisfactory way in which to do justice.

In general, the court did not see that the fact that Mr Pelling was earning his living as a McKenzie friend altered the situation.

There were, however, two features to Mr Pelling's activities to which the court should refer. The first was that Mr Pelling at times had difficulty in divorcing his campaigning role from that as an assistant of litigants in person.

The second was that, if a person chose to regularly appear as a McKenzie friend, especially if he was also a clerk, because he was earning his living in that way, he must exercise considerable restraint or he would cease to conduct himself as an assistant and would indirectly run the case, using the litigant in person in the manner in which a puppet master used a puppet.

Such behaviour could provide a firm foundation for a judge not wishing him to be present as a McKenzie friend.

In determining whether a litigant in person should have the benefit of the assistance of a McKenzie friend, the considerations identified in Part 1 of the Civil Procedure Rules (SI 1998 No 3132) as to what was involved in doing justice were relevant.

In particular, the help which a McKenzie friend could properly give a litigant in person could assist in achieving equality between the parties and also assist in reducing the length of the hearing.

A McKenzie friend who did not act appropriately could, however, frustrate the objectives set out in Part 1. That was why the courts must have a discretion to determine the role a McKenzie friend should be allowed to play.

Part 39 of the Rules, and the supplementary Practice Direction, identified three different categories of hearing: (i) hearings in open court; (ii) hearings in the judge's room or chambers to which the public had access; and (iii) hearings in court or in the judge's room or chambers which were in private.

If the hearing was a public hearing in chambers there might be a limit on the number of the members of public who could attend and the judge dealt with that as appropriate as a matter of discretion. However, it was normally to be expected that a McKenzie friend would have priority over other members of the public.

Whether or not it was right to talk about a judge having a duty to give reasons in a situation such as the present, the court certainly regarded it as desirable that a judge should do so, even if the reasons were short. The obligation to give reasons was, however, owed to the litigant in person and not the McKenzie friend.

It would have been preferable for the judge to have given short reasons. However, the fact that he did not give reasons had caused no possible prejudice to the litigant in person.

He had had no need to have the assistance of a McKenzie friend. The hearing was a private hearing and Mr Pelling had not been entitled to attend unless he had been given permission to do so.

The court would therefore summarise its conclusions by saying as follows:

1 In relation to proceedings in public, a litigant in person should be allowed to have the assistance of a McKenzie friend unless the judge was satisfied that fairness and the interests of justice did not require a litigant in person to have the assistance of a McKenzie friend.

2 The position was the same where the proceedings were in chambers unless the proceedings were in private.

3 Where the proceedings were in private then the nature of the proceedings which made it appropriate for them to be heard in private might make it undesirable in the interests of justice for a McKenzie friend to assist.

4 A judge should give reasons for refusing to allow a litigant in person the assistance of a McKenzie friend.

5 The assistance of a McKenzie friend was available for the benefit of the litigant in person and whether or not a McKenzie friend was paid or unpaid for his services he had no right to provide those services; the court was solely concerned with the interests of the litigant in person.

Solicitors: Treasury Solicitor.

Comment : We need more men like Michael.