McKenzie friend practice guidance 2010

04/11/2011 13:47



Practice Guidance: McKenzie Friends (Civil and Family Courts)

1) This Guidance applies to civil and family proceedings in the Court of Appeal

(Civil Division), the High Court of Justice, the County Courts and the Family

Proceedings Court in the Magistrates’ Courts.

1 It is issued as guidance (not as a

Practice Direction) by the Master of the Rolls, as Head of Civil Justice, and the

President of the Family Division, as Head of Family Justice. It is intended to

remind courts and litigants of the principles set out in the authorities and

supersedes the guidance contained in

Practice Note (Family Courts: McKenzie

Friends) (No 2)


[2008] 1 WLR 2757, which is now withdrawn.2 It is issued in

light of the increase in litigants-in-person (litigants) in all levels of the civil and

family courts.

The Right to Reasonable Assistance

2) Litigants have the right to have reasonable assistance from a layperson, sometimes

called a McKenzie Friend (MF). Litigants assisted by MFs remain litigants-inperson.

MFs have no independent right to provide assistance. They have no right

to act as advocates or to carry out the conduct of litigation.

What McKenzie Friends may do

3) MFs may: i) provide moral support for litigants; ii) take notes; iii) help with case

papers; iv) quietly give advice on any aspect of the conduct of the case.

What McKenzie Friends may not do

4) MFs may not: i) act as the litigants’ agent in relation to the proceedings; ii)

manage litigants’ cases outside court, for example by signing court documents; or

iii) address the court, make oral submissions or examine witnesses.

Exercising the Right to Reasonable Assistance

5) While litigants ordinarily have a right to receive reasonable assistance from MFs

the court retains the power to refuse to permit such assistance. The court may do

so where it is satisfied that, in that case, the interests of justice and fairness do not

require the litigant to receive such assistance.

6) A litigant who wishes to exercise this right should inform the judge as soon as

possible indicating who the MF will be. The proposed MF should produce a short

curriculum vitae or other statement setting out relevant experience, confirming



References to the judge or court should be read where proceedings are taking place under the Family

Proceedings Courts (Matrimonial Proceedings etc) Rules 1991, as a reference to a justices’ clerk or

assistant justices’ clerk who is specifically authorised by a justices’ clerk to exercise the functions of

the court at the relevant hearing. Where they are taking place under the Family Proceedings Courts

(Childrens Act 1989) Rules 1991 they should be read consistently with the provisions of those Rules,

specifically rule 16A(5A).



R v Leicester City Justices, ex parte Barrow [1991] 260, Chauhan v Chauhan [1997] FCR 206, R v

Bow County Court, ex parte Pelling



[1999] 1 WLR 1807, Attorney-General v Purvis [2003] EWHC

3190 (Admin),


Clarkson v Gilbert [2000] CP Rep 58, United Building and Plumbing Contractors v




[2002] EWCA Civ 628, Re O (Children) (Hearing in Private: Assistance) [2005] 3 WLR 1191,

Westland Helicopters Ltd v Sheikh Salah Al-Hejailan (No 2)



[2004] 2 Lloyd’s Rep 535. Agassi v

Robinson (Inspector of Taxes) (No 2)



[2006] 1 WLR 2126, Re N (A Child) (McKenzie Friend: Rights of

Audience) Practice Note



[2008] 1 WLR 2743.



that he or she has no interest in the case and understands the MF’s role and the

duty of confidentiality.

7) If the court considers that there might be grounds for circumscribing the right to

receive such assistance, or a party objects to the presence of, or assistance given

by a MF, it is not for the litigant to justify the exercise of the right. It is for the

court or the objecting party to provide sufficient reasons why the litigant should

not receive such assistance.

8) When considering whether to circumscribe the right to assistance or refuse a MF

permission to attend the right to a fair trial is engaged. The matter should be

considered carefully. The litigant should be given a reasonable opportunity to

argue the point. The proposed MF should not be excluded from that hearing and

should normally be allowed to help the litigant.

9) Where proceedings are in

closed court, i.e. the hearing is in chambers, is in

private, or the proceedings relate to a child, the litigant is required to justify the

MF’s presence in court. The presumption in favour of permitting a MF to attend

such hearings, and thereby enable litigants to exercise the right to assistance, is a

strong one.

10) The court may refuse to allow a litigant to exercise the right to receive assistance

at the start of a hearing. The court can also circumscribe the right during the

course of a hearing. It may be refused at the start of a hearing or later

circumscribed where the court forms the view that a MF may give, has given, or is

giving, assistance which impedes the efficient administration of justice. However,

the court should also consider whether a firm and unequivocal warning to the

litigant and/or MF might suffice in the first instance.

11)A decision by the court not to curtail assistance from a MF should be regarded as

final, save on the ground of subsequent misconduct by the MF or on the ground

that the MF’s continuing presence will impede the efficient administration of

justice. In such event the court should give a short judgment setting out the

reasons why it has curtailed the right to assistance. Litigants may appeal such

decisions. MFs have no standing to do so.

12) The following factors should not be taken to justify the court refusing to permit a

litigant receiving such assistance:

(i) The case or application is simple or straightforward, or is, for instance, a

directions or case management hearing;

(ii) The litigant appears capable of conducting the case without assistance;

(iii)The litigant is unrepresented through choice;

(iv)The other party is not represented;

(v) The proposed MF belongs to an organisation that promotes a particular cause;

(vi)The proceedings are confidential and the court papers contain sensitive

information relating to a family’s affairs

13)A litigant may be denied the assistance of a MF because its provision might

undermine or has undermined the efficient administration of justice. Examples of



circumstances where this might arise are: i) the assistance is being provided for an

improper purpose; ii) the assistance is unreasonable in nature or degree; iii) the

MF is subject to a civil proceedings order or a civil restraint order; iv) the MF is

using the litigant as a puppet; v) the MF is directly or indirectly conducting the

litigation; vi) the court is not satisfied that the MF fully understands the duty of


14) Where a litigant is receiving assistance from a MF in care proceedings, the court

should consider the MF’s attendance at any advocates’ meetings directed by the

court, and, with regard to cases commenced after 1.4.08, consider directions in

accordance with paragraph 13.2 of the Practice Direction Guide to Case

Management in Public Law Proceedings.

15) Litigants are permitted to communicate any information, including filed evidence,

relating to the proceedings to MFs for the purpose of obtaining advice or

assistance in relation to the proceedings.

16) Legal representatives should ensure that documents are served on litigants in good

time to enable them to seek assistance regarding their content from MFs in

advance of any hearing or advocates’ meeting.

17) The High Court can, under its inherent jurisdiction, impose a civil restraint order

on MFs who repeatedly act in ways that undermine the efficient administration of


Rights of audience and rights to conduct litigation

18)MFs do

not have a right of audience or a right to conduct litigation. It is a criminal

offence to exercise rights of audience or to conduct litigation unless properly

qualified and authorised to do so by an appropriate regulatory body or, in the case

of an otherwise unqualified or unauthorised individual (i.e., a lay individual

including a MF), the court grants such rights on a case-by-case basis.


19) Courts should be slow to grant any application from a litigant for a right of

audience or a right to conduct litigation to any lay person, including a MF. This is

because a person exercising such rights must ordinarily be properly trained, be

under professional discipline (including an obligation to insure against liability for

negligence) and be subject to an overriding duty to the court. These requirements

are necessary for the protection of all parties to litigation and are essential to the

proper administration of justice.

20)Any application for a right of audience or a right to conduct litigation to be

granted to any lay person should therefore be considered very carefully. The court

should only be prepared to grant such rights where there is good reason to do so

taking into account all the circumstances of the case, which are likely to vary

greatly. Such grants should not be extended to lay persons automatically or

without due consideration. They should not be granted for mere convenience.



Legal Services Act 2007 s12 – 19 and Schedule 3.



21) Examples of the type of special circumstances which have been held to justify the

grant of a right of audience to a lay person, including a MF, are: i) that person is a

close relative of the litigant; ii) health problems preclude the litigant from

addressing the court, or conducting litigation, and the litigant cannot afford to pay

for a qualified legal representative; iii) the litigant is relatively inarticulate and

prompting by that person may unnecessarily prolong the proceedings.

22) It is for the litigant to persuade the court that the circumstances of the case are

such that it is in the interests of justice for the court to grant a lay person a right of

audience or a right to conduct litigation.

23) The grant of a right of audience or a right to conduct litigation to lay persons who

hold themselves out as professional advocates or professional MFs or who seek to

exercise such rights on a regular basis, whether for reward or not, will however



be granted in exceptional circumstances. To do otherwise would tend to

subvert the will of Parliament.

24) If a litigant wants a lay person to be granted a right of audience, an application

must be made at the start of the hearing. If a right to conduct litigation is sought

such an application must be made at the earliest possible time and must be made,

in any event, before the lay person does anything which amounts to the conduct of

litigation. It is for litigants to persuade the court, on a case-by-case basis, that the

grant of such rights is justified.

25) Rights of audience and the right to conduct litigation are separate rights. The grant

of one right to a lay person does not mean that a grant of the other right has been

made. If both rights are sought their grant must be applied for individually and

justified separately.

26)Having granted either a right of audience or a right to conduct litigation, the court

has the power to remove either right. The grant of such rights in one set of

proceedings cannot be relied on as a precedent supporting their grant in future



27) Litigants can enter into lawful agreements to pay fees to MFs for the provision of

reasonable assistance in court or out of court by, for instance, carrying out clerical

or mechanical activities, such as photocopying documents, preparing bundles,

delivering documents to opposing parties or the court, or the provision of legal

advice in connection with court proceedings. Such fees cannot be lawfully

recovered from the opposing party.

28) Fees said to be incurred by MFs for carrying out the conduct of litigation, where

the court has not granted such a right, cannot lawfully be recovered from either

the litigant for whom they carry out such work or the opposing party.

29) Fees said to be incurred by MFs for carrying out the conduct of litigation after the

court has granted such a right are in principle recoverable from the litigant for

whom the work is carried out. Such fees cannot be lawfully recovered from the

opposing party.



30) Fees said to be incurred by MFs for exercising a right of audience following the

grant of such a right by the court are in principle recoverable from the litigant on

whose behalf the right is exercised. Such fees are also recoverable, in principle,

from the opposing party as a recoverable disbursement: CPR 48.6(2) and


Personal Support Unit & Citizen’s Advice Bureau

31) Litigants should also be aware of the services provided by local Personal Support

Units and Citizens' Advice Bureaux. The PSU at the Royal Courts of Justice in

London can be contacted on 020 7947 7701, by email at or at

the enquiry desk. The CAB at the Royal Courts of Justice in London can be

contacted on 020 7947 6564 or at the enquiry desk.

Lord Neuberger of Abbotsbury, Master of the Rolls

Sir Nicholas Wall, President of the Family Division

12 July 2010