What Access to Justice?

 

This article appeared in Family Law in March 2000

 

What Access to Justice - Problems of the Litigant in Person

 

Emotionally distraught, not to say suicidal, by the threat of never seeing his young children again, a member of Families Need Fathers arrived at the local court accompanied by his McKenzie Friend, an immaculately attired professional accountant who had been a tower of strength in guiding him through the complexities of his final attempt to break the contact deadlock. At the door of the court the 'friend', who had provided the support which any successful businessman would expect as a matter of course, was refused entry by the usher with the words "we don't like McKenzie Friends here - Mr [Smith] has no need to have a McKenzie Friend".

Compare that to the words of the Master of the Rolls as reported in R v Leicester City Justices ex parte Barrow [1991] 3 WLR 368:

"it was not for the court to consider in advance whether the applicants needed assistance ...it was enough that they should have thought that they needed it".

The aims of Lord Woolf's review of the judicial system were to improve access to justice, reduce the cost of litigation and remove unnecessary distinctions of practice and procedure. If only the poor and the very rich can afford the luxury of litigation using lawyers, what of the oft despised middle-class parent deprived of home and children in consequence of divorce? 'Never litigate' may be sound advice but in matrimonial matters spouses are sometimes obliged to do so merely to retain credibility as parents.

For the novice the daunting experience of the formal court setting plus the ex-spouse flanked by solicitor and barrister can be mitigated by the support of a lay assistant. The authority for what is commonly known as a McKenzie Friend derives from the dictum of Lord Tenterden in Collier v Hick (1831) 2 B & Ad 663:

"Any person whether he be a professional man or not, may attend a trial as a friend of either party, may take notes, and may quietly make suggestions and give advice to that party."

In McKenzie v McKenzie [1970] 3 All ER 1034 Sachs LJ added:

"It is ... in the public interest that litigants should be seen to have all available aid in conducting cases in court surroundings, which must of their nature to them seem both difficult and strange."

Although there is nothing in that case to debar the use of 'friends' in chambers hearings - the forum for most family matters - it is impossible to predict, before appearing at the door of the court, whether such a person will be admitted.

Many barristers dislike the litigant in person and routinely object to the presence of a lay assistant, so it is hardly surprising that those who become judges may experience some difficulty reverting to a more user-friendly stance. The result is confusion and inconsistency. So much so that in September 1997 I invited the then President of the Family Division to issue a Practice Direction to clarify the matter. Although my request was declined, his reply seemed heartening:

"Despite one or two 'hiccups' I believe that the role of the 'McKenzie friend' is now well established. The law reports of which you have kindly included copies provide the necessary authority."

R v Leicester City Justices (above) noted:

"The court's administration of justice had not only to be fair, but to be seen to be so. A party appearing in person should therefore be given reasonable assistance in conducting his case, including that of an adviser, unless the court, in the exercise of its jurisdiction to maintain order and regulate proceedings before it, ordered otherwise."

In Re H (A Minor) (Chambers Proceedings: McKenzie Friend) [1997] 2 FLR 423 the same positive attitude to lay assistance was evident:

"even if a hearing was in chambers, because it concerned a child, a litigant appearing in person was not to be deprived of the presence and proper assistance of a friend".

In Re M (Contact: Family Assistance: McKenzie Friend) [1999] 1 FLR 75, another Court of Appeal case, it was stated:

"a McKenzie friend should have been allowed: the presence of a McKenzie friend was often helpful".

In R v Bow County Court ex parte Pelling [1999] 2 FLR 149 it was stated:

"The McKenzie friend had neither the right to be in chambers nor to impugn the exercise of judicial discretion to exclude him. Further, no general duty existed for a judge to give reasons for his decision to exclude a McKenzie friend."

As the New Law journal (12 March 1999) noted:

"Cases can be won and lost in chambers and can, if for example, the application is to strike out a claim or defence, be just as nerve-racking as an appearance in open court. Is justice being done if a litigant in person is denied assistance at the whim of the judge? It certainly isn't being seen to be done. And why should the judge not have to give reasons for the way in which he has exercised his discretion? ... we cannot think of any good reason why an unrepresented litigant should not have the benefit of a genuine friend whether the case is in chambers or in open court."

The judgement in the appeal against the above matter (Otton LJ and Steel J) was handed down by the Master of the Rolls, Lord Woolf, Brooke and Robert Walker LJJ, on 28 July 1999. It was unhelpful to litigants in person and, in my view, contrary to the principles laid down in Lord Woolf's Access to Justice strategy, namely that the civil justice system:

"should be fair and be seen to be so by: ensuring that litigants have an equal opportunity, regardless of their resources, to assert or defend their legal rights, providing every litigant with an adequate opportunity to state his own case and answer his opponent's. Also it should be responsive to the needs of those who use it."

The only concession, albeit minor, to the litigant in person is that the judge should give reasons for a decision to exclude a McKenzie Friend. In this case it was deemed that as the matter was simple there was no need for assistance, which appears to conflict with the view of a former Master of the Rolls (see above).

One of the arguments seemingly designed to restrict aid for a parent, already financially stretched and combat weary, is to classify Children Act 1989 matters relating, for example, to section 8 applications, i.e. contact, prohibited steps, residence and specific issues, as private and therefore subject to judges' discretion. A high percentage of family law hearings fall into that category. I frequently suggest acting in person to parents frustrated over contact problems, shared residence or hostility from their children's schools, once mediation has been attempted without success. How can the use of scarce family resources be justified merely to say to a judge, "please sir, I wish to keep in touch with my children, can you help?".

In the absence of a statutory presumption in favour of a McKenzie Friend, current practice depends on the idiosyncratic value-judgements of individuals. This varies between the two High Court judges who took the view that even if a hearing was in chambers, because it concerned a child, a litigant in person was not to be deprived of the presence and proper assistance of a friend, to the opposite extreme. This is unsatisfactory from the litigant's standpoint and insulting to a professional person who has devoted a day of his time to help a person in distress, only to be turned away at the door of the court. Indeed, many parents would regard their time as being as valuable as that of a lawyer sitting in judgement on their child's future.

Although it has always been regarded as the inherent and inalienable right of any citizen to present his own case, the courts have a largely unfettered discretion to regulate their internal proceedings and lawyers decide with whom they will co-operate. A look at legal history shows that, far from being tolerant of lay participation, lawyers and the courts have often been unsympathetic and unwilling to allow encroachment into their territory. If the more user-friendly spirit of the Woolf reforms have Government backing, then the remedy for the McKenzie problem would have been simply to incorporate a statutory right in the Access to Justice Act 1999.

Approaches to the Lord Chancellor's Department proved negative. What a person needs before committing himself to acting as a McKenzie Friend is a clear indication of his rights, not an exercise in legal semantics as to the meaning of what a judge may or may not have said or meant in 1831, 1970 or 1999.

 

Trevor Berry
January 2000