Pelling, R (on the application of) v Bow County Court [1999] EWCA Civ 2004 (28 July 1999)

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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Pelling, R (on the application of) v Bow County Court [1999] EWCA Civ 2004 (28 July 1999) URL: http://www.bailii.org/ew/cases/EWCA/Civ/1999/2004.html Cite as: [1999] EWCA Civ 2004, [1999] 2 FLR 1126, [1999] 4 All ER 751, [1999] 1 WLR 1807, [1999] 3 FCR 97, [1999] WLR 1807, [1999] Fam Law 698

1. 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.

2. 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.

4. 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.

6. 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."

7. 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.

8. 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.”

“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”.

10. In R v Leicester City Justices, ex parte Barrow [1991] 2 QB 260 the Court of Appeal on an appeal from the Divisional Court considered the position of a McKenzie friend as a result of a decision before Justices in relation to a hearing in respect of Community Charges. Lord Donaldson MR in his judgment indicated that he was approaching the issue as to the status of a McKenzie friend on the basis of principle and the dicta in a few cases to which they had been referred. He drew attention to the fact that there are many basic rules covering the administration of justice by the courts but pointed out that they can be summed up “by saying that it must be administered fairly and unless the interests of justice otherwise require, it must be administered openly and its administration must not only be fair but seen to be fair”. He went on to indicate that in that case the proceedings were being held in the absence of the public because of the risk of public disorder. They were circumstances in which the McKenzie friend had no legitimate grievance and personally had no rights. He however indicated that the applicants were in a different position. They had the right to be heard. He added:

“Fairness, which is fundamental to all court proceedings, dictated that they should be given all reasonable facilities for exercising this right and, in cases of doubt, they should be given the benefit of that doubt for the courts must not only act fairly, but be seen to act fairly. The real issue in this appeal is whether the Leicester City Justices acted fairly and were seen to act fairly in the circumstances of this case. That they sought to do so in a difficult situation is not in doubt, but they may not have succeeded. References to “McKenzie friends” and still more to a “right to a McKenzie friend” mislead, because they suggest that someone who seeks to assist a litigant in person has a special status akin to, if less than, that of one who has a right of audience or a right to conduct litigation. The “McKenzie friend” does not exist at all as such and has neither status nor rights. The only right is that of the litigant and his right is to reasonable assistance, which can take many forms. If he is blind, he may need someone to read documents to him, if he is hard of hearing, he may need someone sitting next to him who can make a note so he can read what he cannot hear. The possibilities, if not endless are at least extensive.”

“A party to proceedings has a right to present his own case and in so doing to arm himself with such assistance as he thinks appropriate, subject to the right of the court to intervene. Thus he can bring books and papers with him, pens, pencils, spectacles, a hearing aid and any other form of material which he thinks appropriate. Subject to them not being of extraordinary volume and an unusual nature there is no need for the matter to be mentioned to the justices or the clerk. If he wishes to have an adviser, as contrasted with an advocate, it is convenient that he should mention this fact to the justices or to their clerk in order that he may know why the person concerned is sitting next to the defendant, rather than in the space reserved for the general public. Furthermore, the justices or their clerk may reasonably wish to know whether this adviser is likely to be called as a witness and should not hear the evidence of other witnesses if exclusion from court whilst that evidence is being given is usual in that class of case. They may reasonably also wish to know that the adviser is not claiming rights of audience or proposing to exercise them on behalf of the party and that he is not a party to another case or a member of the public who has lost his way. But if a party arms himself with assistance in order the better himself to present his case, it is not a question of seeking the leave of the court. It is a question of the court objecting and restricting him in the use of this assistance, if it is clearly unreasonable in nature or degree or if it becomes apparent that the “assistance” is not being provided bona fide, but for an improper purpose or is being provided in a way which is inimical to the proper and efficient administration of justice, for example, causing a party to waste time, advising the introduction of irrelevant issues or the asking of irrelevant or repetitious questions”.

“In my opinion there are in general no grounds for objecting to a litigant in person being accompanied by an assistant, who will sit beside him, take notes and advise sotto voce on the conduct of his case. If the court is open to the public, the assistant is entitled to be present in his own right provided that there is room; and if the litigant wishes him as an assistant he should be accorded priority over the public in general”.

“I do not see that it can be in the interests of justice to prevent someone giving this sort of assistance merely because the case is thought by the judge to be simple. If he thinks that a litigant in person is bound to win without assistance, he must still be reticent until the stage of the trial is reached when it is appropriate for him to say so. If on the other hand the litigant in person is bound to lose, the trial must still continue until he has lost. If a defendant has no defence there is nothing that an assistant can properly advise him to say without becoming vexatious, when he can be stopped.”

14. The hopes of Lord Donaldson and Staughton LJ as to the use of the description “McKenzie friend” have not been realised. We are content to use the title. We do however stress: (i) that the authorities lay down that a McKenzie friend has personally no rights with regard to litigation, it is the litigants who have the right, (ii) that a McKenzie friend has no right to be an advocate, (iii) that both in proceedings in chambers and in proceedings in open court, the court has a discretion to exclude a McKenzie friend, (iv) that the difference between the position in open court and in chambers is one of degree. That is because in open court a member of the public has, subject to the question of room, an entitlement to be present while in the case of a hearing in chambers he or she does not have that entitlement. In the case of an open court hearing, there usually must be some justification established if a person is not to have the benefit of the assistance of another person, or some evidence that that person has previously acted inappropriately or is acting inappropriately at the hearing which makes it reasonable for the court to deprive the litigant of the assistance which would otherwise be provided.

16. There are many considerations which can arise in chambers to make the presence of a McKenzie friend inappropriate when that presence would be appropriate in open court. The proceedings can be confidential. The particular McKenzie friend may encourage an adversarial approach which is inappropriate to family proceedings. The behaviour of the McKenzie friend may be inimical to the judge conducting the litigation in the manner which he or she considers is the most satisfactory way in which to do justice.

17. So far, we have not dealt with the fact that Dr Pelling has set himself up as a “professional” McKenzie friend. We doubt whether in any of the authorities to which we referred the courts had in mind the possibility that someone should set himself up to earn a living as a McKenzie friend. However, in general we do not see that the fact that Dr Pelling is earning his living in this way alters the situation. There are however two features to Dr Pelling’s activities to which we should refer. The first is that Dr Pelling at times has difficulty in divorcing his campaigning role as Chairman of the pressure group to which he belongs from that as an assistant of litigants in person. The second is that if a person chooses to regularly appear as a McKenzie friend, especially if he is also a clerk, because he is earning his living in this way, he must exercise considerable restraint or he will cease to conduct himself as an assistant and will indirectly run the case, using the litigant in person in the manner in which a puppet master uses a puppet. Such behaviour could provide a firm foundation for a judge not wishing him to be present as a “McKenzie friend”. In expressing this view, we do not regard ourselves as saying anything which is in conflict with what Ward LJ said in Re H [1997] 2 FLR 423 at p.424A.

18. In the course of argument Dr Pelling also referred to Parts 1 and 39 of the Civil Procedure Rules. In determining whether a litigant in person should have the benefit of the assistance of a McKenzie friend, we agree that the considerations identified in Part 1 as to what is involved in doing justice are relevant. In particular the help which a McKenzie friend can properly give a litigant in person could assist in achieving equality between the parties and also assist in reducing the length of the hearing. A McKenzie friend who does not act appropriately can however, frustrate the objectives set out in Part 1. That is why the courts must have a discretion to determine the role a McKenzie friend should be allowed to play.

20. First of all there are hearings in open court. Secondly, there are hearings in the judge’s room or chambers to which the public have access. Thirdly there are hearings in court or in the judges room or chambers which are in private. If the hearing is a public hearing in chambers there may be a limit on the number of the members of public who can attend and the judge deals with this as appropriate as a matter of discretion. However, as indicated by Staughton LJ in the Barrow case, it is normally to be expected that a McKenzie friend would have priority over other members of the public. (See also Hodgson v Imperial Tobacco Limited [1998] 1 WLR 1056 at p.1071C.)

21. Although we have restated the position on this part of the appeal in general our approach is in accord with that of Otton LJ in his judgment in the Divisional Court. There is however a difference in emphasis, because Lord Justice Otton having carefully considered the same authorities as those we have considered, was primarily seeking to explain why Dr Pelling had no rights in the matter whereas in our judgment, we have accepted that this is the position and have sought to clarify the position from the point of view of the litigant in person.

22. In his argument for the respondents, Mr Rabinder Singh emphasised that there is no general statutory duty on a judge to give reasons and that the case law did not suggest that a judge has to give reasons for the exercise of his discretion in relation to who may be present at chambers proceedings. He also submitted that there can be situations where it would be inappropriate to require reasons since the nature of the decision is purely discretionary. The Divisional Court accepted these submissions.

24. In this case, Dr Pelling sought to interrogate the judge as to his reasons. Having obtained an order from the Master, that order was subsequently set aside by Jowitt J. Quite apart from the fact that the interrogatories were not sought by the litigant, to seek to interrogate a judge would not be appropriate. The remedy is of a different nature. If it is a situation where reasons are necessary to understand why a particular order was made, and a judge does not give reasons, then on appeal a court may have no alternative but to set aside the order. In some situations the absence of reasons may be superfluous. Take an order for costs. The general rule is that costs follow the event and if a judge makes an order and that reflects an outcome of the litigation, the reason for his making the order is obvious. Judges should not take up time giving reasons when they are unnecessary. However, if it is unclear why a decision is being taken, then reasons should be given.

25. Here it would have been preferable for the judge to have given short reasons. However, the fact that he did not give reasons has caused no possible prejudice to Mr Greenwood. As I have explained, he had no need in connection with his very straight- forward and simple application to have the assistance of a McKenzie friend. The hearing was a private hearing and Dr Pelling was not entitled to attend unless he was given permission to do so.

27. Dr Pelling was most anxious to argue that this conclusion of Lord Justice Otton was wrong. With some difficulty Dr Pelling was persuaded not to advance the argument. However, subsequent to the hearing he has sought to re-open the matter in correspondence. In our judgment there is no justification for so doing. If there were any question of Dr Pelling being entitled to any remedy or relief, then unless, which we doubt, Mr Rabinder Singh could have persuaded us to the contrary, we would not have deprived Dr Pelling of that relief or remedy because of any lack of standing. In our judgment in those circumstances Dr Pelling would have had sufficient interest to bring proceedings. However there can be no question of any remedy being provided to Dr Pelling in this situation. He is clearly not entitled to have the order made by the judge quashed. The only person who could have sought such a remedy is the litigant in person he was seeking to assist and the litigant would have had to do so by appealing. Although there are references in Dr Pelling’s application to prohibition and injunctions, they would clearly be an inappropriate form of relief. Mandamus would not be appropriate either. There remains the question of declaratory relief. As he was not a party to the original proceedings, it would not be appropriate to grant him any declaration . Any clarification of the law which is required has been given in this judgment.

England and Wales Court of Appeal (Civil Division) Decisions