Regina v Leicester City Justices, ex parte Barrow: CA 1 Aug 1991

The appellant challenged a community charge liability order in which justices had refused an application made on his behalf for a friend to be allowed to sit with him to give advice and assistance. He sought judicial review. The Divisional Court had refused review.
Held: The appeal succeeded. ‘A party to proceedings has a right to present his own case and in so doing to arm himself with such assistance as he thinks appropriate, subject to the right of the court to intervene . . if a party arms himself with assistance in order the better himself to present his case, it is not a question of seeking the leave of the court. It is a question of the court objecting and restricting him in the use of this assistance, if it is clearly unreasonable in nature or degree or if it becomes apparent that the ‘assistance’ is not being provided bona fide, but for an improper purpose or is being provided in a way which is inimical to the proper and efficient administration of justice by, for example, causing the party to waste time, advising the introduction of irrelevant issues or the asking of irrelevant or repetitious questions.’ The court expressed its hope that as regards the term ‘McKenzie Friend’: ‘the fervent hope . . that we shall hear no more of ‘McKenzie friends’ as if they were a form of unqualified legal assistant known to the law.’ Such terminology obscures the real issue which is fairness or unfairness. Let the term ‘McKenzie friend’ join the ‘Piltdown man’ in decent obscurity.’
On the facts ‘I cannot be sure that the applicants were not prejudiced and accordingly I have no doubt that the justices’ order should be quashed.’
Lord Donaldson of Lymington MR said: ‘It is important to appreciate that in this case we are not concerned with rights of audience or rights to conduct litigation. Rights to conduct litigation are not relevant to proceedings on a summons claiming a community charge liability order, whilst the applicants’ right of audience as parties to the proceedings has never been called into question and neither they nor Mr John sought any right of audience for him. The applicants’ case came on for hearing at a time when, for good reason, the court was closed to the general public, other than representatives of the press, and the applicants, represented by Ms Jones, rightly sought (and needed) the leave of the justices to enable Mr John to enter the court. The reason put forward by Ms Jones was that the applicants wished Mr John to assist them in presenting their cases to the court by taking notes, quietly making suggestions to the applicants and giving the applicants advice.
The justices’ refusal to allow Mr John to enter the court may well have aggrieved Mr John, but he is not a party to these proceedings. In so far as he has a legitimate grievance, it could only be on the basis that he was a member of the public who wanted to be a spectator in court, for, not having a right of audience on behalf of the applicants, he personally had no other right. The applicants are in a different position. They have a right to be heard in their own defence. Fairness, which is fundamental to all court proceedings, dictates that they shall be given all reasonable facilities for exercising this right and, in case of doubt, they should be given the benefit of that doubt for courts must not only act fairly, but be seen to act fairly. The real issue in this appeal is whether the Leicester City justices acted fairly and were seen to act fairly in the circumstances of this case. That they sought to do so in a difficult situation is not in doubt, but they may not have succeeded. References to ‘McKenzie Friends’ and still more to a ‘right to a McKenzie Friend’ mislead, because they suggest that someone who seeks to assist a litigant in person has a special status akin to, if less than, that of one who has a right to audience or a right to conduct litigation. The ‘McKenzie Friend’ does not exist at all as such and has neither status nor rights. The only right is that of the litigant and his right is to reasonable assistance which can take many forms.’
Lord Donaldson of Lymington MR
[1991] 2 QB 260
England and Wales
CitedMcKenzie 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 . .
ApprovedRe G (Chambers Proceedings: McKenzie friend) CA 10-Jul-1991
A proposed McKenzie friend was a solicitor who was to be paid, but did not wish to be on the record. H appealed a refusal to allow him to be present in chambers. The Judge had taken the view that the proceedings were of a highly confidential nature . .

Cited by:
CitedO and others (Children); In re O (Children), In re W-R (a Child), In re W (Children) CA 22-Jun-2005
In each case litigants in person had sought to be allowed to have the assistance and services of a Mackenzie friend in children cases. In one case, the court had not allowed confidential documents to be disclosed to the friend.
Held: The . .
CitedRegina v Horseferry Road Justices ex parte Hillier Admn 9-Oct-1998
Challenge to conviction based upon evidence as to contents of evidence bags where there was a discontinuity in its custody. Counsel complained that he had been badgered by the stipendiary magistrate into revealing his defence in advance.
Held: . .

Lists of cited by and citing cases may be incomplete.
Updated: 12 September 2021; Ref: scu.227948