R v Bow County Court, ex parte Pelling
| Jurisdiction | England & Wales |
| Judge | LORD WOOLF |
| Judgment Date | 28 July 1999 |
| Judgment citation (vLex) | [1999] EWCA Civ J0728-15 |
| Docket Number | QBCOF 1999/0478/4 |
| Court | Court of Appeal (Civil Division) |
| Date | 28 July 1999 |
[1999] EWCA Civ J0728-15
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION (DIVISIONAL COURT)
(LORD JUSTICE OTTON AND MRS JUSTICE STEELE)
Royal Courts of Justice
Strand
London WC2A 2LL
The Master of the Rolls
(Lord Woolf)
Lord Justice Brooke
Lord Justice Robert Walker
QBCOF 1999/0478/4
DR PELLING appeared in person with Mr Greenwood as a McKenzie friend.
MR R SINGH (Instructed by The Treasury Solicitor, London, SW1H 9JS) appeared on behalf of the Respondent
Wednesday 28 July 1999
LORD WOOLF, MR:
This is the judgment of the court. This is an appeal from a decision of the Divisional Court on 1 March 1999. On that occasion the Divisional Court, for reasons set out in a judgment by Lord Justice Otton, dismissed Dr Michael John Pelling's application for judicial review of a refusal of His Honour Judge Goldstein on 9 December 1997 to permit Dr Pelling to act as a McKenzie friend to a Mr Bernard Greenwood.
The Facts
On 9 December 1997 Mr Greenwood had made an ex parte application concerning contact arrangements with his son. From what Dr Pelling informed us, the application was in connection with transport difficulties. In an affidavit sworn in support of Dr Pelling's application, Mr Greenwood states that he was waiting at court when he was told that the court manager wanted to speak to him. He went to her office accompanied by Dr Pelling. She told him that Judge Goldstein was willing to hear his application, but would not let Dr Pelling into court to assist as a McKenzie friend. Mr Greenwood says that he was concerned and upset at this news as it was essential to have the matter resolved. "I felt that without Dr Pelling there to help me" his case would not be adequately argued and presented. No explanation was given for the judge's refusal except some reference to some outstanding matter. Dr Pelling asked if he could see the judge to obtain an explanation, but the court manager reported back that the judge would not give him an audience. Later the court manager informed Mr Greenwood that a District Judge was prepared to hear his application and would have no objection to Dr Pelling acting as a McKenzie friend. However, Mr Greenwood preferred to appear before Judge Goldstein who was the Senior Civil Judge at the Bow County Court. He did so but without a McKenzie friend. Mr Greenwood says that he did not at this time obtain the order he sought and felt that he may have been disadvantaged by not having the assistance of "my friend in court". Mr Greenwood did not however appeal.
Mr Greenwood also states in his affidavit that when the original hearing in relation to contact took place before the same judge in June 1995, Dr Pelling was present and assisted Mr Greenwood as a McKenzie friend without objections being raised.
At the beginning of his judgment Lord Justice Otton pointed out that Dr 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. Dr Pelling was in fact the chairman of East London Families Need Fathers until February 1998 and Mr Greenwood is secretary of that organisation. Dr Pelling in the course of his submissions informed this court that he derived about a third of his income from acting as a McKenzie friend. Another third is earned through his employment as a clerk to a practising solicitor. The two roles provide an attractive combination for someone who cannot afford the cost of traditional legal representation. At one time Dr Pelling used to seek rights of audience before a court in family matters on behalf of litigants in person but in a judgment in the case of D v S, The Times, 1 January 1997 [1997] 1FLR 724 CA Lord Woolf MR indicated that as he was not qualified as a solicitor or as counsel it would not be within the spirit of the Courts and Legal Services Act 1990, ss.17, 18 and 27, to allow him to exercise rights of audience except in exceptional cases. Dr Pelling told us during the hearing of this appeal, that in practice he does not obtain permission to address the court and so his activities before the court have been limited to those of a McKenzie friend.
The Role and Status of a McKenzie Friend
The title "McKenzie Friend" draws its name from the decision of the Court of Appeal in McKenzie v McKenzie [1971] P 33. The role of a McKenzie friend was first recognised in Collier v Hicks [1831] 2 B & Ad.663. Lord Tenterden CJ in that case said (at p.669):
"Any person, whether he be a professional man or not, may attend as a friend of either party, may take notes, may quietly make suggestions, and give advice; but no-one can demand to take part in the proceedings as an advocate, contrary to the regulations of the Court as settled by the discretion of the Justices".
McKenzie v McKenzie was a contested divorce case. The husband had been legally aided but his legal aid was terminated. At the commencement of the hearing there was sitting beside him an Australian barrister, who was working for one of the firms of solicitors who had been acting for the husband. According to the report he was there "voluntarily in order to assist the husband in conducting his case". The young man could have been of great value to the husband at the hearing of the case which was complicated and lasted some ten days or so. However the judge at first instance did not allow him to remain after he found out that his firm was no longer on the record. The three members of this court (Davies, Sachs and Karminski LJJ) considered that this was a wrong decision. In that case the court was of the opinion that the husband was entitled to the assistance of the McKenzie friend. Sachs LJ in his judgment stated that the error made by the judge did not render the trial a nullity. However he added "that where such an error takes place the onus rests on the opposite party to show that it did not cause prejudice". Sachs LJ also stated:
"All the assistance a litigant in person gets from a judge and from opposing counsel is not really the same thing as having skilled assistance at his elbow during the whole of a lengthy trial. In those circumstances it has not been shown that there was no prejudice to the husband on the adultery issue through lack of the assistance which he ought to have had. It is moreover always, to my mind, in the public interest that a litigant should be seen to have all available aid on conducting cases in court surroundings, which must of their nature to them seem both difficult and strange."
The case of McKenzie v McKenzie was very different to Mr Greenwood's application. His application was a very straightforward and not a complicated matter. I am confident that Mr Greenwood on the application could not have been prejudiced in any way by not having the assistance of Dr Pelling. He himself refers to the fact that he is the secretary of an organisation of which Dr Pelling was chairman. His familiarity with legal proceedings is perhaps illustrated by the fact that on the present appeal Dr Pelling indicated that Mr Greenwood was present as Dr Pelling's McKenzie friend and we noted one occasion when he provided assistance to Dr Pelling.
The importance of recognising that the nature of the proceedings can affect the appropriateness of a litigant in person being supported by a McKenzie friend was a matter to which this court attached significance in the case of Re G (A minor) (unreported) 10 July 1991. That was an appeal in wardship proceedings where an application was being made to end the wardship of a ward of court. The judge took the view that the proceedings were of a highly confidential nature and that it was unnecessary for the appellant, Mr G, to have a McKenzie friend. The particular McKenzie friend was a qualified solicitor who had full knowledge of the case, having read the papers beforehand. Lord Justice Parker pointed out that in McKenzie v McKenzie the proceedings were in open court while these proceedings were in Chambers and he added:
"In my judgment it must be a matter for the judge to have control over whom he permits to remain in a Chambers proceeding. There are, no doubt, many cases in which a judge will find it proper to exercise his discretion in favour of allowing a McKenzie friend to be in Chambers and he should and will naturally view any application in that behalf with sympathy, as I have no doubt the learned judge did in this case, but save in exceptional cases, it would be quite wrong for this court to interfere with a decision of a learned judge as to the persons whom he will allow to be present in a Chambers matter."
Lord Justice Balcombe, agreed with the judgment of Parker LJ and added:
"The position of litigants in person, who are ineligible for legal aid but at the same time unable to afford the normal services of a solicitor, is one where the use of a McKenzie friend in appropriate circumstances can be very helpful. For that reason I agree with what my Lord has said that one hopes, and indeed expects, that judges of the Family Division, when dealing with cases in Chambers, will consider with understanding any application for a litigant in person to have the assistance of a McKenzie friend where appropriate. But having said that, I agree entirely with what my Lord has said that this must be a matter for the discretion of the judge to conduct his or her own proceedings in Chambers and I can see no ground upon which this court could possibly interfere with the decision of the judge".
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