Representation by McKenzie friend

Izzo v Philip Ross & Co (A Firm) (Ch D TLR 9 August)

Paragraph 15.12 of the Chancery Guide provides that only in very exceptional circumstances may an assistant (often referred to as a McKenzie friend) be allowed to address the court on behalf of the litigant under s27(2)(c) of the Courts and Legal Services Act 1990. The court had doubts as to the fairness and practicality of this practice. A relatively inarticulate and unknowledgeable litigant prompted at every turn resulted in his case taking far longer to present than if the friend spoke directly for him. Every time the court raised or put a point to the litigant in person it had to be explained to the litigant which often took three times longer than explaining it to his friend. Then the litigant had to have the answer explained to him by the friend, whereafter the litigant passed the answer to the court. That was a process which self-evidently prolonged the hearing and, like Chinese whispers, was fraught with potential misunderstanding. It might be said that that course was hardly consistent with the overriding objective in terms of fairness to the litigant, his opponent and the court. Moreover, it was liable to increase costs and be against the public interest and the interests of other litigants. Further, in these days of human rights consciousness, the court would want a good reason before it required a person to present his own case inarticulately when there was someone with relevant abilities who was ready to speak for the litigant. Nevertheless, there were good reasons for the rule. It was scarcely in the public interest to allow litigants to chose to be represented by inappropriate friends. Members of the public should know that they were briefing a representative who had been properly trained and who was accredited by an appropriate professional body. To permit any person unknown to the court, with no legal training and no professional accreditation to represent the litigant might be unfair to the litigant and to other parties. There was a danger that some experienced and frequently obsessive litigants would make their services as McKenzie friends available to other litigants as a matter of course. Any application to be represented by a McKenzie friend had to be considered with great care on a case-by-case basis. All litigants should be aware that allowing a friend to address the court was an indulgence which the court would not likely accord.