The recent case of Ameyaw v McGoldrick [2020] EWHC 1741 (QB) offers a cautionary tale about McKenzie Friends and what they can and can’t do for you in court. In this case the judge, Mrs Justice Steyn, refused to allow the MF to make oral submissions on behalf of the claimant, saying the claimant was a well-educated intelligent woman who had extensive experience of litigation, and was perfectly capable of speaking for herself.

This was not a family law case, where perhaps it is more common to find McKenzie Friends involved. It was an action for libel, malicious falsehood, breach of confidence and misuse of private information, (apparently arising from a longstanding employment dispute) being dealt with in the Queen’s Bench Division of the High Court, under its Media and Communications List. Although it’s not unheard of for such claims to be brought by a litigant in person, they are normally only pursued with the benefit of legal advice. In this case the defendants were represented by solicitors and, at the hearing, a barrister, but the claimant seems to have been managing her claim herself, ie as a litigant in person (LIP).

There was a preliminary hearing on the defendants’ application to decide on the meaning of the statements which the claimant was alleging to be defamatory, and whether the claim should be struck out or judgment given for the defendants, essentially on the grounds that the claim had no merit and was bound to fail.

The claimant was accompanied at that hearing by Mr Ogilvy, whom she had identified in an email sent before the hearing as her “litigation friend”, as well as two other supporters, members of her family. At the start of the hearing, the judge explained that a “litigation friend” is a person who acts for a child or a protected party, whereas a “McKenzie friend” is a lay person who provides assistance to an unrepresented party. The claimant made clear that she wished Mr Ogilvy to act as her McKenzie Friend. The judge agreed to permit this, on the basis that Mr Ogilvy’s role would be to provide the claimant with moral support, which might include taking notes, helping the claimant with her case papers and quietly giving her advice on any aspect of the conduct of the case.

He would not, however, be allowed to make oral submissions (to speak in court) on her behalf. As a litigant in person, that was something the claimant should do herself. But the claimant seems to have been taken by surprise at this. She then tried to apply for permission from the court for Mr Ogilvy to be allowed to make oral submissions on her behalf, saying that although she could speak for herself as to the facts of the case, she was relying heavily on Mr Ogilvy to assist her on the law.

The judge referred to guidance given ten years ago by Lord Neuberger MR and Sir Nicholas Wall P in Practice Note (McKenzie Friends: Civil and Family Courts) [2010] 1 WLR 1881, and to the Queen’s Bench Guide, both of which indicated that, although it was ultimately a matter for the court’s discretion, the cases where a right of audience would be accorded to a McKenzie Friend would be “very exceptional”.

Exercising her discretion in this case, the judge decided not to allow Mr Ogilvy to make oral submissions on behalf of the claimant. She explained her reasons at para 66 of her judgment:

“(i) It is clear that while the Court has the power to grant a McKenzie friend the right to address the court on behalf of an unrepresented party, the Court should be ‘slow’ to allow a McKenzie friend to make oral submissions, only granting such a right in what have been described as ‘special circumstances’ or ‘very exceptional circumstances’.
(ii) I was not satisfied that there were any special or exceptional circumstances for granting Mr Ogilvy a right of audience in this case.
(iii) The Claimant is a well-educated, intelligent woman who was clearly well able to speak on her own behalf.
(iv) It is readily apparent from the history of litigation between the parties that the Claimant has extensive experience of litigation, including experience representing herself (albeit she has also been represented on many occasions).
(v) The Practice Note explains that one of the reasons courts should be slow to grant a McKenzie friend a right of audience is because a person exercising rights of audience must ordinarily be properly trained. This factor is particularly pertinent having regard to the Grewal Judgment in which the Employment Tribunal referred at [27] to Mr Ogilvy’s cross-examination of one of the respondent’s witnesses and said: ‘It was clear that he was not well prepared and that the Claimant was not pleased with his performance.’ After it was disclosed that he had been convicted on counts of falsely representing he was a barrister, Mr Ogilvy said he could no longer act for the Claimant. Rejecting an application to adjourn, the Employment Tribunal said at [29]: ‘The Claimant had started the case representing herself and had done so more ably than Mr Ogilvy. She could continue to represent herself.’
(vi) The only reason the Claimant gave for asking permission for Mr Ogilvy to make oral submissions on her behalf was, in effect, that she was underprepared because she had assumed that he would be able to make submissions on her behalf. Given that McKenzie friends are only permitted to make oral submissions in special or very exceptional circumstances, there was no basis on which the Claimant (or Mr Ogilvy) could properly have assumed that the Court would grant him a right of audience. And the Claimant had ample notice of the Defendants’ application.
(vii) I had agreed that Mr Ogilvy could assist the Claimant. I anticipated, as I explained to the Claimant, that the Defendants’ Counsel would make most of his submissions before lunch, so the Claimant would have an opportunity over the lunch adjournment to discuss her response with Mr Ogilvy. I was also prepared to give the Claimant a further break after the Defendants’ Counsel finished his submissions, if his submissions continued after lunch.
(viii) I also explained that if the Claimant felt that there were matters she was not able to address properly at the hearing, because she had not anticipated making oral submissions on the law, I would be prepared to receive further written submissions provided within seven days of the hearing.”

She added, in para 68, that

“an example of ‘special circumstances’ which may justify granting a McKenzie friend the right to make oral submissions are where the litigant has health problems which preclude her from addressing the court, and the litigant cannot afford to pay for a qualified legal representative. … However, any such submission will need to be supported by evidence.”

The claimant seems not to have taken the decision well. According to the judge,

In the end the case had to be adjourned. We do not know what happened at the resumed hearing on 3 July. But having stated reasons for her decision, the judge issued a written judgment from this preliminary hearing.

Other cases

There have been a number of recent cases involving McKenzie Friends which have illustrated the risks of relying on someone who is not a qualified practitioner to perform the functions of a lawyer in court. In this case it appears that the claimant’s chosen representative had, in earlier proceedings in the Employment Tribunal, not only failed to prepare well, but it was revealed that he “had been convicted on counts of falsely representing he was a barrister”.

In another case, H (Children : exclusion of Mackenzie friend) [2017] EWFC B31 the judge complained about the conduct of a McKenzie Friend who attempted to describe himself as occupying a “quasi-solicitorial role”: Judge Carol Atkinson said firmly that “There is no such thing as ‘almost’ a solicitor. You are either a solicitor or you are not.”

In that case, Judge Atkinson accepted that

“the family courts in particular have generally welcomed McKenzie Friends. However, with the withdrawal of public funding there has been a marked increase in the use of ‘professional’ McKenzie Friends, as here, and there is a danger that the boundaries between the regulated and non-regulated representative is becoming blurred.”

But there have been other cases where the court has been grateful for the assistance that a McKenzie Friend can supply, and frankly relieved to have someone articulate and able to explain the litigant’s case when the litigant themselves is too stressed or overwhelmed to be able to do so.

Although in the present case the judge was firmly of the opinion that the claimant did not need the assistance of Mr Ogilvy to speak on her behalf, it seems the employment tribunal had been more accommodating (tribunals are generally less formal in procedure anyway) and it is fair to say that the family courts are also more likely to permit the practice. That much is clear from the judgment of Lord Justice McFarlane in In re J (Children) [2018] EWCA Civ 115, where the issue was not about the McKenzie having a right of audience but about their participating in other ways like an advocate:

“There is, as I have already indicated, a stark distinction between a McKenzie Friend assisting by making an oral contribution at, for example, a case management hearing, on the one hand, and cross examining key factual witnesses in a trial, on the other.”

In the light of those remarks, it may seem a little surprising that in the present case Mr Ogilvy was not allowed to speak for the claimant, but it is clear that the judge thought this was unnecessary, given that she was capable of speaking for herself, and accordingly the exceptional circumstances required for conferring a right of audience were not made out. But it may also reflect a difference of approach between the Queen’s Bench Division and the Family Division or family courts more generally, where the higher incidence of litigants in person, and therefore of reliance on the assistance of McKenzie Friends, means that the courts tend to be more accommodating or indulgent when exercising their discretion in favour of granting a right of audience.

The key point for litigants in person is not to assume that such permission will be granted, and therefore you should always be prepared to present your case yourself.

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