mckenzie friend

mckenzie friend

support at a hearing

mckenzie friend

  

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McKenzie Friends Practice Note

What is a McKenzie friend?

A McKenzie Friend is somebody who accompanies a litigant in person to a court hearing. They do not speak to the court, they may take notes, may quietly make suggestions, and give advice.

What a McKenzie friend can do

  • provide moral support
  • take notes
  • help with case papers
  • quietly give advice on:
    • points of law or procedure
    • issues that the litigant may wish to raise in court
    • questions the litigant may wish to ask witnesses

What a McKenzie friend can not do

  • a McKenzie friend has no right to act on behalf of a litigant in person. It is the right of the litigant who wishes to do so to have the assistance of a McKenzie friend
  • a McKenzie friend is not entitled to address the court, nor examine any witnesses. A McKenzie friend who does so becomes an advocate and requires the grant of a right of audience
  • a McKenzie friend may not act as the agent of the litigant in relation to the proceedings nor manage the litigant's case outside the court, for example, by signing court documents

The Judicial Work Group on Litigant's in Person Report - July 2013

The Civil Justice Council's recommendations:

6.19 The Civil Justice Council made two recommendations about McKenzie Friends in its report:

A Court Notice of McKenzie Friends should be adopted. This would be filled in by the claimant / defendant and handed to the court usher before a hearing. It would provide the judge with information on why the party wanted to exercise their right to have a McKenzie Friend, the nature of their relationship with the McKenzie Friend, and the McKenzie Friend's contact details. The Notice would also require the McKenzie Friend to specify whether they had read the Practice Guidance (which would be made available at all courts).

A Code of Conduct for McKenzie Friends should be agreed. Unlike the Practice Guidance, this would be aimed at McKenzie Friends and Litigant in Person (LiP), and would state very clearly the "do's" and "don'ts".

Equal Treatment Bench Book, Judicial Studies Board 2009

1.3 Unrepresented parties

  • a litigant who is not legally represented has the right to have reasonable assistance from a lay person, sometimes called a McKenzie friend ('MF'). This is the case even where the proceedings relate to a child and are being heard in private.
  • a litigant in person wishing to have the help of a MF should be allowed such help unless the judge is satisfied that fairness and the interest of justice do not so require. The presumption in favour of permitting a MF is a strong one.
  • a litigant in person intending to make a request for the assistance of a MF should be encourage to make the application as soon as possible indicating who the MF will be
  • it will be most helpful to the litigant in person and to the court if the particular MF is in a position to advise the litigant in person throughout the proceedings.
  • a favourable decision y the court, allowing the assistance of a MF, should be regarded as final and not as something which another party can ask the court to revisit later, save on the ground of misconduct by the MF or on the ground that the MF's continuing presence will impede the efficient administration of justice.
  • when considering any request for the assistance of a MF, article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms, schedule to the Human rights Act 1998, is engaged; the court should consider the matter judicially, allowing the litigant reasonable opportunity to develop the argument in favour of the request.
  • the litigant in person should not be required to justify his desire to have a MF; in the event of objection, it is for the objecting party to rebut the presumption in favour of allowing the MF to attend
  • factor which should not outweigh the presumption in favour of allowing the assistance of a MF include:
    • the fact that proceedings are confidential and that the court papers contain sensitive information relating the family's affairs
    • the fact that th litigant in person appears to be capable of conducting the case without the assistance of a MF
    • the fact that the litigant in person is unrepresented through choice
    • the fact that the objecting party is not represented
    • the fact that the hearing is a directions hearing or case management hearing
    • the fact that a proposed MF belongs to an organisation that promotes a particular cause
  • the proposed MF should not be excluded from the courtroom or chanbers while the application for assistance is made, and the MF should ordinarily be allowed to assist the litigant in person to make the application
  • the proposed Mf should produce a short curriculum vitae or other statement setting out relevant experience and confirming that he/she has on interest in the case and understands the role of a MF and the duty of confidentiality
  • if a court decides in the exercise of its discretion to refuse to allow a MF to assist the litigant in person, the reasons for the decision should be explained carefully and fully to both the litigant in the person and the would-be MF.
  • the litigant may appeal that refusal, but the MF has no standing to do so
  • the court may refuse to allow a MF to act or continue to act that capaciity where the judge forms the view that the assistance the MF has given, or may give, 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.
  • where permission has been given for a litigant in person to receive assistance from a MF in care proceedings, the court should consider the attendance of the MF at any advocates' meeting direct by the court, and, with regard to cases commenced after 1 April 2008, consider directions in accordance with para 13.2 of Practice Direction (Public Law Proceedings: Case Management) [2008]
  • the litigant in person is permitted to communicate any information, including filed evidence, relating to the proceedings to the MF for the purpose of obtaining avice or assistance in relation to the proceedings
  • legal representatives should ensure that documents are served on the litigant in person in good time to seek assistance regarding their content from the MF in advance of any hearing or advocates' meeting