R v Bow County Court, Ex p Pelling

A litigant in person should generally be allowed reasonable assistance from a McKenzie friend where this promotes fairness and the interests of justice. The court retains discretion to restrict or exclude that assistance, including where the hearing is private, confidential, or the proposed assistant would obstruct the proper administration of justice. A McKenzie friend has no personal right to attend, no right of audience, and no independent litigation status. The entitlement belongs to the litigant. A judge should give short reasons for refusing assistance where the basis of the decision would otherwise be unclear. The fact that a McKenzie friend is paid does not itself justify exclusion, although a professional assistant must not effectively conduct the litigation through the litigant.

Dr Pelling sought judicial review of Judge Goldstein’s refusal to allow him to assist Mr Greenwood as a McKenzie friend during a private family hearing at Bow County Court. The Divisional Court dismissed the application on 1 March 1999. Dr Pelling appealed.

The Court of Appeal considered the status of a McKenzie friend, the effect of the hearing being private, the relevance of the proceedings’ simplicity, the absence of reasons for the refusal, and Dr Pelling’s standing to seek relief. The central issue was whether the judge had unlawfully refused assistance and whether Dr Pelling himself could obtain a remedy.

1. Appeal dismissed. The hearing concerned a straightforward application conducted in private. Mr Greenwood had no need for Dr Pelling’s assistance, and the refusal caused him no possible prejudice.
2. A McKenzie friend has no personal rights in the litigation and no right of audience. The relevant right is the litigant in person’s right to reasonable assistance in presenting his own case. The court may intervene where the assistance is clearly unreasonable, provided for an improper purpose, or inimical to the fair and efficient administration of justice.
3. In public proceedings, assistance should generally be permitted unless the judge is satisfied that fairness and the interests of justice do not require it. The same approach applies to chambers proceedings which remain public. Private proceedings are different because the public has no entitlement to attend, and the confidential or otherwise private nature of the proceedings may make assistance undesirable.
4. The distinction between open court and chambers proceedings is one of degree. The nature of the proceedings, the conduct of the proposed assistant, confidentiality, and the need to preserve an appropriate method of conducting the case may justify exclusion.
5. The fact that Dr Pelling earned a living as a McKenzie friend did not itself alter the position. However, a professional assistant must exercise considerable restraint. If he effectively runs the case through the litigant, that may provide a proper basis for exclusion.
6. Although short reasons should desirably have been given, reasons are required only where necessary to make the decision intelligible. Their absence did not justify relief because no prejudice had resulted. Dr Pelling could not obtain the order quashed, prohibition, an injunction, mandamus, or a declaration. Any challenge to the order had to be brought by the litigant in person by appeal. The appeal was dismissed with no order for costs, and leave to appeal to the House of Lords was refused.

• Court of Appeal: dismissed the appeal, made no order for costs, and refused leave to appeal to the House of Lords.
• Divisional Court: on 1 March 1999 dismissed Dr Pelling’s application for judicial review of Judge Goldstein’s refusal to permit him to act as a McKenzie friend.