Your Right To A Friend

 

Excluding assistance in court is unfair, says Richard Gregory

There are few areas of the law so misunderstood - by lawyers and laymen alike - as the status and function of the McKenzie Friend.

The purpose of a McKenzie Friend - someone who assists an unrepresented party in court - is to aid the litigant by taking notes, organising papers and giving advice. He is not an advocate and has no rights of audience, but may speak if invited by the judge. A "McKenzie" can help to calm a litigant, and is often his only witness to proceedings.

The principle was defined by Lord Tenterden in 1831: "Any person, whether he be a professional man or not, may attend as a friend of either party, may take notes, may quietly make suggestions, and give advice." The soubriquet was acquired in more modern times, when Lord Justice Sachs ruled in McKenzie v McKenzie (1970) that "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." The common law seems clear.

But where hearings are in chambers judicial opinion is less consistent, with some judges refusing to admit McKenzie Friends. In closed courtrooms, opposed by hostile lawyers (with assistants and often funded by legal aid), the poor are being penalised.

Why? Until recently the published authority was Lord Justice Ward's ruling that "even if the matter proceeds in chambers as a matter affecting a child" a litigant should be allowed a McKenzie Friend. This was acknowledged by Sir Stephen Brown, the President of the Family Division, as providing "the necessary authority". But some lawyers (and judges) still objected to McKenzie Friends in family cases. Worried parents could never be sure that their assistant would be allowed into court.

Then in March Lord Justice Otton unearthed a previously unreported case from 1991 and ruled that there was no right to assistance in a closed hearing. This drew criticism from The New Law Journal, which asked: "Is justice being done if a litigant is denied assistance at the whim of a judge? It isn't being seen to be done."

Quite. But Lord Woolf, Master of the Rolls, upheld the ruling - and went further. On July 28 he decreed that it may be "undesirable in the interests of justice" for a McKenzie Friend to be present in chambers; judges could decide that a litigant "had no need" of assistance and that proceedings were "confidential". Worse, he reduced the right to a McKenzie Friend in open court to a matter of judicial discretion.

Most affected are fathers seeking access to their children: few other people use a McKenzie Friend in chambers. And while there are valid reasons for exclusion, the judgment seemed more concerned with judicial privilege than with the rights of ordinary citizens.

Lord Woolf has paved the way for the Access to Justice Bill. But McKenzie Friends do not feature in it and the Lord Chancellor has "no plans" to give them a statutory footing.

Increasingly, people are acting in person out of financial necessity. They require a user-friendly system, not legal semantics. They should have a right to assistance, especially if it concerns children. It should not be a judge's decision.

 

Updated 29-02-2000