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                                  LITIGANT IN PERSON

                                  A Friend in Court

The Court of Appeal recently made a landmark decision which will be welcomed by all who act in person - namely that being accompanied by a friend in court is an absolute right, and is not at the discretion of the court. It was also ruled that denial of this right is unfair and strikes at the very root of justice. These rulings vindicate our stance on the matter, and we are grateful to the National Council for Civil Liberties (now Liberty) for taking up the issues involved.

The term 'McKenzie friend' relates to the case of McKenzie v McKenzie - a divorce action where the judge had mistakenly debarred the "friend" of a litigant. The matter went to the Court of Appeal and is reported in [1970] 3 WLR 472, upholding the ruling of Lord Tenterden in Collier v Hicks [7 June 1831] that:

"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, may give advice ..."

Litigants in person have been actively pursuing their right to act in person and to be accompanied by friends in court, using the standard letter;"A Friend in Court". (SEE BELOW). Odd pockets of resistance have been encountered, with some judges claiming that "friends" are a matter for their discretion; others claiming the case was so simple that a friend was not required, or so complex that a friend could be of no possible use.

Leicester magistrates

In 1990, matters took a serious turn when Leicester magistrates refused to allow a poll tax defaulter to be accompanied by a friend. A judicial review of the matter supported the magistrates, and litigants in person members began to also find themselves being denied assistance in court. Our advice is to stick to the McKenzie precedent - it being a divorce matter - and to claim that the Leicester decision was solely for poll tax issues in the magistrates courts.

Court of Appeal

On 25 July 1991 the matter came before the Court of Appeal and Sir John Donaldson, Master of the Rolls made the following rulings.

Fairness and benefit of doubt

Litigant in person should be given all reasonable facilities, and in case of doubt should be given the benefit of that doubt, for the courts must not only act fairly but must be seen to do so. Any unfairness, whether apparent or actual and however inadvertent struck at the root of justice.

The right to assistance

A party to proceedings had a right to present his own case and in doing so to arm himself with such assistance as he thought appropriate. Thus he could bring books and paper with him, pens, pencils, his spectacles, a hearing aid and any other form of material assistance he thought appropriate. If he wished to have an advisor, it was convenient that he should mention that fact to the justices or their clerk in order that they knew why the person concerned was sitting next to the litigant.

Permission not required

The Leicester magistrates had adopted the attitude that the applicant could only be assisted by a friend with the express permission of the court. That was wrong, it was not a question of seeking the leave of the court.

Not for the court to consider

It was not for the court to consider in advance whether the applicant needed assistance. Unless there were clear grounds in the proper administration of justice for denying assistance it was enough that he thought he needed it.

Grounds for objection

The court might object and restrict a litigant in the use of assistance if it became apparent that the assistance was not being provided bona fide but for an improper purpose or was being provided in a way which was inimical to the proper administration of justice.

The full reports are in The Times 5 August 1991 and The Guardian 14 August 1991.

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Litigant in person - Letter to the Court

IN THE ____________ COURT No of Matter: _____ 

To: The Court Manager or Clerk to the Court

Dear Sir,
                        A FRIEND IN COURT

I continue to act in person in all aspects of this matter.

At the hearing before ___________________ on ________,
it is my intention to act in person and be accompanied by a friend. 

Litigants in person are entitled to the presence of a friend
(sometimes known as a McKenzie person) arising from the following:

- Rules of the Supreme Court, Order 35 rule 7/1.
     - County Courts Act 1984, Section 60 (notes)
     - McKenzie v McKenzie [1970] 3 WLR 472

In order to avoid unnecessary delay on the day of the hearing,
please will you place this letter before the judge and advise me
if there is any objection to my proposed course of action.

Yours faithfully,


Signed...............(Litigant in person)

BACKGROUND

The Court of Appeal ruling on McKenzie, which endorsed the precedent
for a friend in court, did in fact relate to a divorce action heard in
chambers, where the judge had wrongly debarred the "friend" of a litigant.

The McKenzie ruling upheld that of Lord Tenterden in Collier v Hicks
      [7 June 1831]  which stated that :

"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 .."