The Litigant in Person and the McKenzie Friend
A litigant in person is someone who represents himself or herself in Court proceedings. The legal system is one that is designed for lawyers and so in the majority of cases, it will be an unfamiliar environment for the litigant in person who may find the Court process complex and daunting. The litigant in person may feel at a disadvantage, particularly if the other party to the proceedings is represented. Not only will the litigant in person be trying to get to grips with concepts of law and procedure, he or she may well be experiencing fear, frustration and bewilderment. Whilst litigants in person will source advice and assistance where they can, it is open to them when it comes to appearing in Court, to seek the assistance of a McKenzie friend.
A McKenzie friend is generally a lay person (but can be someone with a legal background) who is able to support the litigant in Court and provide reasonable assistance, for example, by taking notes, suggesting questions for examination and cross examination, and advising. A McKenzie friend does not have the right of audience and does not conduct the proceedings nor is he or she involved in the signing of paperwork. The role is generally one of providing quiet support and assistance in Court and/or assisting the litigant with advice or administrative matters out of Court. There is strong support from the Judiciary for the appointment of a McKenzie friend, the crucial point being that a litigant in person is entitled to have assistance. The litigant in person should notify the Court of his or her wish to have assistance at the earliest opportunity. The McKenzie friend will often be required to confirm that he understands his role, that he understands the requirement of confidentiality and that he has no interest in the case. He may also be required to set out his relevant experience.
The term ‘McKenzie’ came from a divorce case. Levine McKenzie was unable to afford legal representation after his legal aid was withdrawn. His former Solicitors sent Levine’s case to an Australian barrister the day before the hearing. The barrister’s qualifications in Australia did not allow him to practice in the English Courts but he hoped to be able to assist Levine by prompting him, advising and taking notes. The trial Judge refused the Australian Barrister’s attendance in Court. On appeal, the Court of Appeal ordered a re-trial as the trial Judge’s refusal had deprived McKenzie of the assistance he was entitled to.
The Court can refuse a litigant in person the assistance of a McKenzie friend. It is generally for the Court or the party objecting to provide reasons why the litigant should not receive such assistance, and the Court has to be satisfied that the interest of fairness and justice do not require it. Reasons for refusal of the right to a McKenzie friend might include, for example, the assistance is being provided for an improper purpose, the assistance being provided is inappropriately adversarial, thus hindering rather than assisting proceedings, the McKenzie friend is directly or indirectly conducting the litigation. In the recent case Re Baggaley  EWHC 1496 (Fam) the President of the Family Division extended indefinitely a restraining order preventing Mr Baggaley from issuing proceedings or acting as a McKenzie friend in any proceedings. Mr Baggaley had persistently acted beyond the confines and proper role of a McKenzie friend in family proceedings.
McKenzie friends have established their value in family law, but ultimately there is no substitute for expert legal representation, and so do contact the Family Team at Bennett Griffin LLP for on 01903 229912 for advice, assistance and representation in relation to any aspect of family law.
Article by Jackie Gifford, Chartered Legal Executive and Family Mediator
The information contained in this article is for general guidance only and is not intended to be legal advice. Professional advice should always be taken on the application of the law in any particular situation.