Courts should be careful before allowing unqualified persons to represent other parties at court. Pleadings and similar documents must be signed by the party or their qualified legal representative. Others signing them may be in contempt of court and committing criminal offences. A McKenzie friend had no right to act as such, only the right to provide assistance, and that did not include any right to represent a party as an advocate. An order was granted banning Mr. Alexander from being involved in proceedings other than any on his own behalf.
Court Service Summary This summary does not form part of the judgment)
1. In this judgment the Court of Appeal has given its reasons for making an order banning Mr. Alexander from taking any steps whatever within the Royal Courts of Justice by way of acting or purporting to act on behalf of persons other than himself in legal proceedings except with the permission of a judge of the High Court or the Court of Appeal. The court also gave guidance about the activities of unqualified people who from time to time seek to help litigants in person in the courts. This ‘help’ may take the form of acting as an advocate in court on their behalf or of conducting litigation on their behalf. The exercise of both these rights is now controlled by the Courts and Legal Services Act 1990.
Advocacy services and rights of audience
2. The existence or otherwise of a right of audience is now determined exclusively by Part II of the Courts and Legal Services Act 1990 (‘the 1990 Act’) and particularly by section 27. If the ‘helper’ is not a barrister or a solicitor or a member of any other authorised body, and does not have rights granted by some statute, he may only have a right of audience in relation to any proceedings if ‘granted by that court in relation to those proceedings’.
3. Lord Woolf, when Master of the Rolls, has said that the discretion to grant rights of audience to individuals who did not meet the stringent requirements of the Act should only be exercised in exceptional circumstances. He added that the courts should pause long before granting rights to individuals who made a practice of seeking to represent otherwise unrepresented litigants.
McKenzie friends
4. Although this case was not concerned with McKenzie friends, the court also set out three principles relating to McKenzie friends. The first is that a McKenzie friend has no right to act as such: the only right is that of the litigant to have reasonable assistance. The second is that a McKenzie friend is not entitled to address the court. If he does so, he becomes an advocate and requires the grant of a right of audience. The third is that as a general rule a litigant in person who wishes to have a McKenzie friend should be allowed to do so, unless the judge is satisfied that fairness and the interests of justice do not so require. However, the court can prevent a McKenzie friend from continuing to act in that capacity where the assistance he gives impedes the efficient administration of justice.
The right to conduct litigation
5. The question whether a person has a right to conduct litigation is also determined solely in accordance with Part II of the 1990 Act. The ‘right to conduct litigation’ means the right to issue proceedings before any court, and the right to perform any ancillary functions in relation to proceedings (such as entering appearances to actions). The right to conduct litigation may be granted having regard to the same considerations as the grant of the right of audience. A court has the power to grant an otherwise unqualified person a right to conduct litigation in relation to particular proceedings. It also has the power to remove that right if it is being abused. It is a criminal offence and also a contempt of the court concerned to do any act in the purported exercise of a right to conduct litigation when none has been conferred.
The Solicitors Act
6. The court also referred to section 20(1) of the Solicitors Act 1974. This section provides that ‘no unqualified person shall act as a solicitor, or as such issue any writ or process, or commence, prosecute or defend any action, suit or other proceeding, in his own name or in the name of any other person, in any court of civil or criminal jurisdiction’. The section creates a criminal offence and also a contempt of the court in which the relevant action is brought. There is no breach and no contempt if the acts in question are carried out pursuant to a right of audience or a right to conduct litigation granted under the 1990 Act. In its judgment the court explains how the words ‘acts as a solicitor’ have been interpreted in the past.
Publicity for these principles
7. The Court expressed the wish that steps might be taken to bring these principles to the attention of everyone who exercises judicial office in the Royal Courts of Justice and every relevant member of court staff. It said that court staff should be particularly vigilant to ensure that formal documents, such as an appellant’s notice, should be signed either by the appellant himself or by someone, such as a solicitor, who has the legal right to conduct litigation on the appellant’s behalf. The court also expressed the hope that the appropriate authorities in the Supreme Court Group and the Civil Appeal Office might set up administrative systems to assist judges to identify those lay representatives who are not simply helping a friend or relation but are holding themselves out to act for others on a regular basis.
Judges:
Lord Justice Brooke, Lord Justice Laws, Lord Justice Tuckey
Citations:
Times 04-Oct-2001, Gazette 18-Oct-2001, [2001] EWCA Civ 1402, [2001] 1 WLR 2357, [2002] CP Rep 5, [2002] Fam Law 16, [2002] 1 Costs LR 12, [2001] NPC 138
Links:
Statutes:
Jurisdiction:
England and Wales
Citing:
Cited – McKenzie v McKenzie CA 10-Jul-1970
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 . .
Cited – Regina v Bow County Court, Ex Parte Pelling CA 17-Dec-1999
Access to the court given to a McKenzie Friend should normally be given in matters in open court, but when it came to matters being heard in chambers, the judge had discretion as to who he would hear. The right is in any event that of the litigant, . .
See Also – Paragon Finance Plc v Noueiri CA 24-Apr-2001
Application for leave to appeal. . .
See Also – Paragon Finance Plc v Noueiri CA 4-Jul-2001
. .
Cited – D v S (Rights of Audience); In re and Application by Dr Pelling CA 18-Dec-1996
The court said that the representation of a litigant in person by a charging non-professional must be only exceptional. . .
Cited by:
Cited – Guidance (McKenzie Friends) 2005
Sir Mark Potter gave guidance on the acceptance of McKenzie Friends as advocates: ‘A court may grant an unqualified person a right of audience in exceptional circumstances only and only after careful consideration (D v S (Rights of Audience) [1997] . .
Cited – In Re N (A Child) FD 20-Aug-2008
There had been several hearings and the father had been assisted by a McKenzie friend permitted to address the court. The father now objected to the mother’s McKenzie friend being given similar leave.
Held: Whilst Dr Pelling might make a . .
Lists of cited by and citing cases may be incomplete.
Litigation Practice, Legal Professions, Contempt of Court
Updated: 04 November 2022; Ref: scu.166185