R v Bow County Court, ex parte Pelling

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeLORD JUSTICE OTTON,MRS JUSTICE STEEL
Judgment Date01 March 1999
Neutral Citation[1999] EWHC J0301-12
Judgment citation (vLex)[1999] EWHC J0301-2
Docket NumberCO/4601/97
Date01 March 1999

[1999] EWHC J0301-12

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

(THE DIVISIONAL COURT)

Royal Courts of Justice

Strand

London WC2A 2LL

Before:

Lord Justice Otton

and

Mrs Justice Steel

CO/4601/97

Regina
Respondent
and
Bow County Court
Ex Parte Pelling
Applicant

DR PELLING appeared in person.

MR RABINDER SINGH (instructed by the Treasury Solicitors) appeared on behalf of the Respondent.

1

Monday 1st March 1999

LORD JUSTICE OTTON
2

This is an application for judicial review of the refusal of His Honour Judge Goldstein on the 9 December 1997 to permit the applicant to act as a McKenzie Friend in a family proceedings chambers matter at Bow County Court.

3

Background:

4

The applicant, Dr Michael John 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. On a number of previous occasions he has acted as a McKenzie Friend to litigants and has sought the right to represent litigants who were otherwise without representation. He is employed by a firm of solicitors.

5

On the 9 December 1997 he sought to assist a friend, a Mr G, who was engaged in such a dispute, on an ex parte application in chambers at Bow County Court. The Judge due to hear Mr G's application, HHJ Goldstein, indicated that he would not permit the applicant to do so. On the following day the applicant wrote to the Judge inviting him to reconsider. The Judge declined to enter into correspondence. Mr G in his affidavit states:

"On 9th December 1997 I made an ex parte application at Bow County Court concerning Contact arrangements with my son [case 95 CP 0024]. I was waiting at court for my application to be heard when I was informed that the Court Manager wanted to speak to me. I went to her Office accompanied by Dr Pelling. She told me that Judge Goldstein was willing to hear my application, but would not let Dr Pelling into court to help me as my McKenzie Friend. I was concerned and upset at this news as it was essential for me to have the matter resolved and I felt that without Dr Pelling to help me my case would not be adequately argued and presented. No explanation was given for the Judge's refusal except some vague reference to some outstanding matter apparently involving Dr Pelling with the Lord Chancellor's Department, about which no details of substance were given. Dr Pelling asked if he could see the Judge to obtain an explanation, but the Court Manager reported back later that the Judge would not give him an audience. I assured the Court Manager that in any event I still wanted Dr Pelling notwithstanding the alleged "outstanding matter".

After conferring again with the Judge the Court Manager informed me a District Judge was prepared to hear my application and would have no objection to Dr Pelling as my McKenzie Friend. I believed however that a Circuit Judge being more senior and experienced was more likely to remedy my situation by taking immediate action, and opted therefore to appear before Judge Goldstein without my McKenzie Friend. I did not at this time obtain the order I sought and feel I may have been disadvantaged by not having the assistance of my friend in court."

6

The applicant in an affidavit stated:

"I am quite frequently requested by litigants in person to act as their McKenzie Friend in Family law proceedings, particularly by members of the society Families Need Fathers of whose East London Branch I am Chairman. I do this on a regular basis and advise members of or visitors to the East London Branch that I am able to assist them in this way and to generally advise on their legal problems. Given the location of the East London Branch I assist in more cases at Bow than any other court. Since Judge Goldstein is the senior resident Circuit Judge at Bow County Court his decision to exclude me as a McKenzie Friend creates an obvious and embarrassing problem."

7

At the start of the appeal hearing a question arose as to whether Dr Pelling had any locus standi to make the application. If he had the right for which he contends, he would have. Accordingly we decided to determine the first main issue rather than deciding the 'locus' issue in isolation.

8

Ground One and Two:

9

In the Form 86A the applicant asserts that he has sufficient interest in litigation as a professional McKenzie Friend providing a regular service to appear in open Court and in Chambers when required to do so by Litigants in Person (LIPs). He contends that a McKenzie Friend is a well defined entity with a well recognised status and rights. There are no monopoly rights to take notes and offer legal advice. Dr Pelling claims that he is in exactly the same position as a barrister or solicitor. As a McKenzie Friend he has lay clients who retain and instruct Dr Pelling (often for reward) to act as a McKenzie Friend in his (and presumably her) litigation. Just as a barrister who is instructed or a solicitor who is retained has a right to appear in Court so a McKenzie Friend has the right to appear in Court and the Judge has no power to exclude him. The only basis upon which a Judge can exclude a barrister or solicitor or a McKenzie Friend is if he or she misconducts him/herself to such an extent that the Judge is entitled to do so. In the absence of any misbehaviour by the applicant on the 9 December, Mr G was entitled to the services of the applicant and the applicant was entitled to provide them.

10

The status of a McKenzie Friend was first recognised in Collier v Hicks [1831] 2 B & Ad.663. Lord Tenterden C J said at p669:

"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."

11

Although obiter, the statement by the Lord Chief Justice was unequivocal: any person may attend as a friend and may take notes and make suggestions. The title of "McKenzie Friend" emerged following the decision of the Court of Appeal in McKenzie v McKenzie [1971] P33. 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 attracted the attention of the Judge who intimated that he should desist whereupon the barrister left the Court. The Judge dismissed the husband's petition but granted the wife a decree nisi. The Court of Appeal decided that the Learned Judge was in error. Every party had the right to have a friend present in court beside him/her to assist by prompting, taking notes and quietly giving advice. By reason of the Judge's intervention the husband had been deprived of that right and, therefore, there had been an irregularity in the proceedings. In reaching their conclusion Davies LJ and Sachs LJ cited Lord Tenterden's dictum and applied the principle. Karminski LJ concurred.

12

In Re G (A Minor) (unreported 10 July 1991) (Court of Appeal Transcript No. 679/1991) a LIP appeared in wardship proceedings in chambers. The Judge took the view that the proceedings were of a highly confidential nature and that it was unnecessary for the LIP 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. He was to be remunerated for his services. He did not put himself on the record. The Court of Appeal dismissed the LIP's appeal. Parker LJ said at 2H:

"In the present case the proceedings are in Chambers and 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 the decision of a learned judge as to the persons whom he will allow to be present in a Chambers' matter."

13

and Balcombe LJ said at 3H:

"I agree. 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."

14

In R v Leicester City Justices ex parte Barrow [1991] QB 260 the Court of Appeal considered the position where Magistrates had refused LIPs who were charged with non-payment of the Community Charge the assistance of a McKenzie Friend in a court closed to the public. The Justices had refused an application for a McKenzie Friend. The LIP applied for judicial review. The Divisional Court upheld the Magistrates but the Court of Appeal allowed the appeal and held that the LIP had a right to a McKenzie Friend unless in the interests of...

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    ...receive quiet and unobtrusive advice from a member of the public. 16. I should also mention R v Bow County Court Ex parte Pelling [1999] 1 WLR 1807, another decision of the English Court of Appeal. The Court was dealing with the role of a McKenzie friend again. The applicant before the cour......
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