England and Wales High Court (Administrative Court) Decisions

1. This is an application for judicial review of the refusal of His Honour Judge Goldstein on the 9 December 1997 to permit the applicant to act as a McKenzie Friend in a family proceedings chambers matter at Bow County Court.

2. The applicant, Dr Michael John Pelling is a D.Phil of the University of Oxford. He is a mathematician by discipline. He is also an experienced participant in family disputes often, but not invariably, as a campaigner for the rights of fathers and their children in such disputes. On a number of previous occasions he has acted as a McKenzie Friend to litigants and has sought the right to represent litigants who were otherwise without representation. He is employed by a firm of solicitors.

3. On the 9 December 1997 he sought to assist a friend, a Mr G, who was engaged in such a dispute, on an ex parte application in chambers at Bow County Court. The Judge due to hear Mr G’s application, HHJ Goldstein, indicated that he would not permit the applicant to do so. On the following day the applicant wrote to the Judge inviting him to reconsider. The Judge declined to enter into correspondence. Mr G in his affidavit states:

4. After conferring again with the Judge the Court Manager informed me a District Judge was prepared to hear my application and would have no objection to Dr Pelling as my McKenzie Friend. I believed however that a Circuit Judge being more senior and experienced was more likely to remedy my situation by taking immediate action, and opted therefore to appear before Judge Goldstein without my McKenzie Friend. I did not at this time obtain the order I sought and feel I may have been disadvantaged by not having the assistance of my friend in court."

5. The applicant in an affidavit stated:

6. At the start of the appeal hearing a question arose as to whether Dr Pelling had any locus standi to make the application. If he had the right for which he contends, he would have. Accordingly we decided to determine the first main issue rather than deciding the ‘locus’ issue in isolation.

7. In the Form 86A the applicant asserts that he has sufficient interest in litigation as a professional McKenzie Friend providing a regular service to appear in open Court and in Chambers when required to do so by Litigants in Person (LIPs). He contends that a McKenzie Friend is a well defined entity with a well recognised status and rights. There are no monopoly rights to take notes and offer legal advice. Dr Pelling claims that he is in exactly the same position as a barrister or solicitor. As a McKenzie Friend he has lay clients who retain and instruct Dr Pelling (often for reward) to act as a McKenzie Friend in his (and presumably her) litigation. Just as a barrister who is instructed or a solicitor who is retained has a right to appear in Court so a McKenzie Friend has the right to appear in Court and the Judge has no power to exclude him. The only basis upon which a Judge can exclude a barrister or solicitor or a McKenzie Friend is if he or she misconducts him/herself to such an extent that the Judge is entitled to do so. In the absence of any misbehaviour by the applicant on the 9 December, Mr G was entitled to the services of the applicant and the applicant was entitled to provide them.

8. The status of a McKenzie Friend was first recognised in Collier v Hicks [1831] 2 B & Ad.663. Lord Tenterden C J said at p669:

9. Although obiter, the statement by the Lord Chief Justice was unequivocal: any person may attend as a friend and may take notes and make suggestions. The title of “McKenzie Friend” emerged following the decision of the Court of Appeal in McKenzie v McKenzie [1971] P33. Mr McKenzie was a litigant in person who wished to be assisted by a young Australian barrister, gratuitously, in the conduct of his case by sitting beside the husband in Court and prompting him. The hearing was in open Court . The friend’s conduct attracted the attention of the Judge who intimated that he should desist whereupon the barrister left the Court. The Judge dismissed the husband’s petition but granted the wife a decree nisi. The Court of Appeal decided that the Learned Judge was in error. Every party had the right to have a friend present in court beside him/her to assist by prompting, taking notes and quietly giving advice. By reason of the Judge’s intervention the husband had been deprived of that right and, therefore, there had been an irregularity in the proceedings. In reaching their conclusion Davies LJ and Sachs LJ cited Lord Tenterden’s dictum and applied the principle. Karminski LJ concurred.

10. This citation conclusively refutes the applicant’s case that he has a “right” to act as a McKenzie Friend. He has a right as a member of the public to be present in open court and nothing more. The right to assistance is that of the LIP who asks the Court for such assistance to be given. The McKenzie Friend has no right to act as a McKenzie Friend. A McKenzie Friend has no status other than to assist. He has no right to seek to enforce that status. If the LIP’s application is refused it is the LIP who has the right to challenge the refusal; the McKenzie Friend has no right to do so. The fact that the McKenzie Friend calls himself a professional McKenzie Friend and does it for reward does not create a right over and above his right as a member of the public. A member of the public has no right to be present in chambers proceedings; he or she (whether a McKenzie Friend or not) has no rights independent of those of the parties to the particular case to be heard in chambers. This distinguishes the McKenzie Friend from the professional advocate. The applicant is not like a professional advocate who could legitimately complain if he were excluded from appearing in court. Advocates have rights of audience which exist independently of any particular client who wishes him to act in his cause.

11. By definition chambers proceedings are not open to members of the public. A member of the public has no right to be present in chambers proceedings for the very reason that they are private. A person who is prepared to act as a McKenzie Friend has no rights independent of those of the parties to the particular case to be heard in chambers.

12. The last sentence emphasises the difference between open court and chambers hearings.

13. In argument the applicant understandably placed considerable reliance upon the decision of this Court in Re H [1997] 2 FLR 423. The Court (Millett LJ and Ward LJ) appeared to suggest that a Recorder, in a County Court Children Act hearing in chambers, was plainly wrong to exclude a McKenzie Friend. The applicant places emphasis on the passage of Ward LJ (an experienced Family Judge) at p424A:

14. I do not consider that this Court is bound to follow that decision or reasoning. It was a decision of a two Judge Court on an ex parte application for Leave to Appeal. The report records that the Court was referred to McKenzie v McKenzie but no other authority. It is inherently unlikely that the applicant (a LIP) cited the case of Re G to the Court or that the Learned Judge had the decision in mind when so pronouncing. The observation was in any event obiter and not the reason for the decision which was determined by the outcome of subsequent events. Thus, in my view, the applicant can place little or no reliance on this decision in support of his claim for a right or for the relief he seeks. Consequently I must reject the applicant’s primary argument.

15. Dr Pelling further contends that the Common Law has evolved in present day conditions of provision of legal services to the point where there is now a right to a McKenzie Friend in proceedings in chambers, and for the ‘friend’ to so act once appointed by the litigant. The applicant developed this line of argument by reference to Magna Carta with an appropriate citation. He pointed out, correctly, that in recent times there has been a sea-change in the provision of legal services. There has been a curtailment in the availability of Legal Aid (with more to come); there has been a growth in the provision of “pro bono” services by the Bar and solicitors and the emergence of a “Community Legal Service” scheme. Accordingly it is in the interests of justice that such a right should be recognised. The use of McKenzie Friends is in the public interest as aiding the fair and efficient administration of justice, and is consistent with S17(1) Courts and Legal Services Act 1990.

16. Having considered his argument with considerable care, I am unable to accept that the Common Law has evolved in the provision of legal services to the point where there is now a right of a McKenzie Friend to be present in chambers. First, the Common Law position is as set out above. The fact that Legal Aid may no longer be available in the range of cases where it was formerly does not create any right or greater status for McKenzie Friends. Barristers and solicitors who appear or assist on a pro-bono basis do so as of right, even in chambers, by virtue of their professional standing. The fact that the applicant acknowledges (and asserts) that he has a duty to “his client” (falling short, as he initially maintained (but later resiled from) of a duty of care) does not assist him. He may wish to call and think of those whom he assists as his “clients” but that does not establish a professional relationship in any legal sense, except that possibly, where he does it for reward, an obligation arises to be present at court on the day of the hearing. His “client” the LIP must still seek the Leave of the Court for the applicant to act as a McKenzie Friend. The other side may object, whether represented or not. This situation cannot be said, as the applicant maintains, to be in violation of rights enshrined on Magna Carta, not even cap. 39:

17. Dr Pelling also exhorted us to have regard to the European Convention on Human Rights (ECHR) in particular Article 6 (1) which provides:

18. He points out that the Human Rights Act 1998 has been enacted but its main provisions are not yet in force. In resolving a common law conflict between the right of a litigant to all right of assistance and the right of a Judge in Chambers to decide whom he would admit, the Court should act in conformity with the Convention. Relying on the decision of the House of Lords in R v SOS for the Home Department ex parte Brind [1991] 1 AC 696 he asserts that in resolving ambiguities in domestic legislation the Courts presume that Parliament intended to legislate in conformity with the Convention, not in conflict with it, a principle which naturally extends to resolving ambiguities or conflicts within the Common Law.

19. I do not accept that there is any inconsistency of or ambiguity in the Common Law (as I have stated it) and Article 6. The precise terms of Article 6 do not, in my judgement, support the applicant’s case. The Convention clearly recognises an exception that the public may be excluded where the interests of juveniles or protection of the private life of the parties so requires. As explained, the applicant is a member of the public, nothing more. Accordingly there is no breach of the Convention. Moreover, the proviso in Article 6 is consistent with Article 8 (1) which guarantees the right to respect for private and family life. Nowhere in the Convention is it suggested that there is a right to a McKenzie Friend or someone similar, as distinct from the litigant. As I am not persuaded that the Common Law position is not in conformity with the Convention, I see no obligation on this Court to consider or apply its implications. Moreover, it is made clear in Brind that the Convention, not having been incorporated into English Domestic Law, could not be a source of rights and obligations and, there being no ambiguity in the Domestic Law it could not be resorted to for the purposes of construction.

20. The applicant also sought to rely on the decision of the Court of Appeal in Hodgson v Imperial Tobacco [1998] 1 WLR 1056 to support his contention that there is a right of a LIP to have a McKenzie Friend in chambers and “a correlative right of the McKenzie Friend to so act once appointed”. A number of plaintiffs brought actions against the defendants claiming damages for personal injuries by reason of cancer which they alleged was caused by smoking cigarettes manufactured by the defendants. The plaintiffs entered into conditional fee agreements with their legal representatives whereby the lawyers were to recover the costs of representing the plaintiffs only if the action was successful. At a hearing for directions in chambers the Judge refused to make a pre-emptive order as to costs and ordered that the parties and their legal advisers should not make any comment to the media about the litigation without leave of the Court. Allowing the appeal against the restriction, the Court of Appeal held that the proceedings in chambers were not confidential and information about what had occurred could, and in the case of a judgment or order should, be made available to the public except in exceptional circumstances. Dr Pelling embraces the passage in Lord Woolf MR’s judgment at p1071 C:

21. In my judgement this decision is not authority for the proposition advanced by the applicant. Dr Pelling acknowledges that the case “is of no help in the instant case”. Moreover, the Master of the Rolls (giving the judgment of the Court) made clear that proceedings in chambers were to be regarded as in private at p1070 F:

22. Thus there was no departure from principle. The Master of the Rolls was merely giving guidelines to judges and the profession in particular cases whilst at the same time emphasising the judicial discretion. Later (at p1072 A-C) when summarising the position he emphasised that this “does not apply to the exceptional situations identified in Section 12 (1) of the Administration of Justice Act 1960 or where the Court, with power to do so, orders otherwise”. Section 12 makes clear that the publication of information relating to proceedings held in private (i.e. Chambers) is not in itself contempt except in the specific cases identified in 12 (1) namely, inter alia, proceedings under the Children Act 1989 which relate to the support or upbringing of a minor. Accordingly the approach, reasoning and conclusions of Lord Woolf are not inconsistent with the terms of Article 6 (1).

23. It follows that I am not persuaded by Dr Pelling’s interesting argument. I would accordingly hold that where the hearing is in open court there is a right to a McKenzie Friend. That right is vested solely in the LIP; there is no correlative right vested in the McKenzie Friend. Where the hearing is in chambers there is a discretion in the Judge whether to permit the presence of a McKenzie Friend. Any challenge to the exercise of the Judge’s discretion can only be made by the LIP, he alone seeks redress from the Court. The McKenzie Friend has neither the right to be present in Chambers nor to impugn the exercise of judicial discretion to exclude him. In my judgment it must follow that he has no locus standi to bring these proceedings. These conclusions are determinative of this application and I would dismiss the application. The rest of this judgment is based on the hypothesis that Dr Pelling has rights and I address his further arguments concerning the duty to give reasons which might arise if another Court were to come to a different conclusion on the primary issues.

24. In Ground 3 of Form 86A the applicant contends that “any discretion of the Judge must be exercised judicially with exclusion of the McKenzie Friend only on proper grounds. The Judge is under a duty to give reasons for such a decision. Judge Goldstein’s decision to exclude the applicant, and his apparent decision to exclude the applicant generally from all Chambers proceedings in which he is the Judge, are flawed procedurally because no reason or explanation was given and the Judge declined to correspond on the matter”.

25. In evaluating this argument I start by considering situations in the County Court where Parliament has created a statutory obligation to give reasons.

26. Section 11 Courts and Legal Services Act 1990 provides:

27. This statutory right of audience is by virtue of sub section (2) confined to proceedings in the Small Claims Court and other minor proceedings. It certainly does not extend to proceedings in Chambers in family matters. Thus the section does not assist McKenzie Friends who have no rights of audience or rights to conduct litigation.

28. Section 27 is concerned with rights of audience and rights to conduct litigation:

29. In my judgement these sections do not support Dr Pelling’s contention. On the contrary, they manifest that where Parliament intended a Judge to give reasons it expressly said so and the precise circumstances in which such a duty arises. Accordingly there is no general duty to give reasons. Where Parliament has not so decreed, I see no justification for creating a new duty at common law. Even if there were such a duty it would, in my view, only extend to the litigant in person and not to the McKenzie Friend. The mere fact that Dr Pelling sought reasons does not, in the absence of any right to reasons, create a duty upon the Judge to give reasons.

30. Dr Pelling seeks relief from this Court to require the Judge to give reasons by administering interrogatories. I emphasise that this was a chambers matter and does not fall within the situation envisaged by Lord Woolf in Hodgson. I accept Mr Rabinder Singh’s submission that there are many judicial decisions, especially those of a discretionary character, when no reasons are required. Indeed, often it would be inappropriate to require reasons since the nature of the decision is purely discretionary. More specifically, I would hold that there is no obligation upon a Judge to give reasons for the exercise of his discretion in relation to who may be present at chambers proceedings. His duty is to consider the LIP’s application on its merits and in the context of the cause before him, i.e. on a case by case basis. I would accordingly refuse the relief sought.

31. Having so concluded, I consider it is unnecessary to explore situations where a theoretical duty to give reasons arises and where not. Suffice it to say that a Judge might consider it wise to give reasons in a particular case. He will consider the nature, sensitivity and complexity of the case and if he considers it appropriate he will do so succinctly.

32. I also consider that as a result of my conclusions on this and the earlier issues there is no purpose in opening up for consideration the many cases which Dr Pelling brought to our attention in which he has acted or sought to act as a McKenzie Friend and upon which he sought to mount an argument that the Judge’s decision not to allow him to act for Mr G was ‘Wednesbury’ unreasonable. Dr Pelling had a long and sympathetic hearing before us. He has no right or locus to apply for judicial review and accordingly I do not consider it appropriate to pursue or determine any of the other matters raised by the applicant.

33. I would dismiss this application.

34. LORD JUSTICE OTTON: For the reasons given in the judgment which has been handed down the application is dismissed.

35. DR PELLING: My Lord, could I have a copy of the judgment?

36. LORD JUSTICE OTTON: Have you not got a copy of the judgment?

37. DR PELLING: I received a draft last week and I sent it back annotated with corrections. I do not have the final version ( same handed to litigant in person ).

38. LORD JUSTICE OTTON: Dr Pelling, I apologise that you were not handed that. You should have been. Thank you for all your suggested alterations and amendments, most of which I have been able to incorporate.

39. DR PELLING: Thank you, my Lord.

40. LORD JUSTICE OTTON: There is only one part that I was not able to accept your amendment, and that concerns the duty of care, but you will pick up that no doubt in due course.

41. Mr Singh, do you have any application?

42. MR SINGH: Yes, I have an application for costs, my Lord.

43. DR PELLING: My Lord, there is one preliminary point before we go into costs. Could you formally include in the order of the Court that I was granted leave to amend my statement and adduce further evidence? That is as requested by my notice in the bundle at page 25.

44. LORD JUSTICE OTTON: Does that need to be incorporated into the order?

45. DR PELLING: My Lord, I think it does. It is Order 53 rule 6(2):

46. LORD JUSTICE OTTON: If you wish that to be incorporated in the order, that will be done. Is there anything else?

47. DR PELLING: The reason I am asking is I think it might be important for the Court of Appeal that they should know ----

48. LORD JUSTICE OTTON: You have the leave. I do not think we need to go any further. Is there anything else?

49. DR PELLING: The name of the case, my Lord - it has been corrected, yes, on the judgment, that is all right then.

50. Then I do ask for leave to appeal to the Court of Appeal. That is all I need to say at this stage.

51. LORD JUSTICE OTTON: At this stage? Have you anything else to say?

52. DR PELLING: Naturally I may wish to address the Court on question of the costs, but I think Mr Singh will speak first on costs.

53. LORD JUSTICE OTTON: He has asked for costs. What do you want to say about it?

54. DR PELLING: I would respectfully submit that this application has served the public interest by getting an important clarification of the law relating to McKenzie friends, in particular the case of re H has now been effectively demolished, whereas it was certainly thought to have some weight and effect, and I would respectfully suggest that perhaps the Crown would not wish, under the circumstances, to pursue costs against me.

55. LORD JUSTICE OTTON: Is there anything else you wish to say?

56. LORD JUSTICE OTTON: What do you want to say about the costs Mr Singh? You have heard what Dr Pelling has said.

57. MR SINGH: My Lord, I am instructed to pursue the application for costs. If I can develop that very briefly. First, in judicial review matters the normal order is still costs to follow the event. Secondly, in so far as Mr Pelling submits that this was a case brought in the public interest, your Lordships will be aware that occasionally this Court has made no order as to costs, but in my experience at least that has been confined to cases where, for example, a charitable organisation or the like has brought an application not to vindicate its own legal interests but on behalf of the public or a section of the public generally.

58. With all due respect to Dr Pelling, many judicial review cases clarify a point of law, and in that sense might be said to be in the public interest, but he is no different from most applicants for judicial review in that he has come to court to vindicate his own interests. He has failed, and in our respect submission we should get our costs.

59. The application for leave to appeal is refused. This is a matter which must take its normal course.

60. As to the issue of costs, we agree that Dr Pelling has raised a matter of public interest, but the interest he has sought to establish is basically to assert a right which has never existed, and which we have found does not exist. Consequently we do not see that as overriding the general principle that costs follow the event in judicial review proceedings. The application for costs therefore is allowed.

61. DR PELLING: It remains, my Lord, for me to ask if I could have back such of the papers that you can release. In particular I did hand up two copies of a page, the Wolf Interim Report and one copy of the Family Proceedings Rules 4.23 which was ----

62. LORD JUSTICE OTTON: Yes. The associate is here. I dare say that can be done. That is a matter of administration.