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September 12, 2007

What is a Mckenzie Friend?

The court may allow a party to a family case to have a friend or adviser to sit with them in court to give you advice and help take notes. This person is referred to as a Mackenzie friend, but they are not allowed to speak for the party in court.

A party may be allowed to introduce a McKenzie friend into court to assist them. There is no right to have a McKenzie friend: the only right is that of the litigant to have reasonable assistance.  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 under s 27 of the Courts and Legal Services Act 1990.  However, generally, 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 and there is a strong presumption in favour of allowing the McKenzie friend (Re H (Minors) (Chambers Proceedings: McKenzie Friend) [1997] 3 FCR 618, CA & Re O (Children): Re W-R: Re W (Children) [2005] EWCA Civ 759, LTL AC0109048, Times 27.6.05 – see case summary in Appendix 2).  However, the court can prevent a McKenzie friend from continuing to act as such where the assistance given is inimical to the efficient administration of justice, for example, where the friend is indirectly running the case or using the litigant as a puppet.  The President’s Office has recently issued Guidance on McKenzie Friends which is available here as a pdf file - http://www.hmcourts-service.gov.uk/cms/files/mckenzie_friends_note.pdf
On the discretion to grant rights of audience to individuals who do not meet the stringent requirements of the CLSA, the court has held that it should only be exercised in exceptional circumstances and should pause long before granting rights to individuals who made a practice of seeking to represent otherwise unrepresented litigants (principles extracted from R v Bow County Court ex p Pelling [1999] 1 WLR 1807, D v S (rights of audience) [1997] 1 FLR 724 and Noueri v Paragon Finance plc, CA, [2001] EWCA Civ 1402 (19.9.01). 

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