Ravenscroft v Canal & River Trust

A litigant may receive assistance from a McKenzie Friend where assistance is reasonably required, having regard to the litigant’s abilities, the technical nature of the case, the procedural context and the overriding objective.

A lay person has no general right to audience or to conduct litigation. Permission to act as advocate is exceptional, but may be granted where unusual circumstances show that it would materially assist the litigant and the court. The litigant must retain conduct of the claim. Permission is conditional and may be withdrawn if abused or if the litigation is conducted improperly.

Without prejudice communications remain inadmissible for interlocutory purposes unless a closely confined exception applies.

The claimant brought a claim concerning the seizure of his narrow boat by the defendant. The claim raised technical issues concerning the meaning of “main navigable channel” under the British Waterways Act 1971 and the defendant’s powers to seize vessels.

The claimant applied for Mr Nigel Moore to act as his McKenzie Friend, including as an advocate. The defendant did not oppose assistance in principle but objected to Mr Moore’s wider involvement and relied on evidence concerning his previous litigation conduct. The court also considered whether an extract from without prejudice negotiations could be used on the application.

The central issues were whether assistance was reasonably required, whether exceptional circumstances justified granting a lay person a right of audience, and what limits should govern that permission.

1. Without prejudice material. The general rule excludes reliance on without prejudice communications. Somatra Ltd v Sinclair Roche & Temperley [2000] 1 WLR 2453 did not establish a general exception for interlocutory hearings. Its reasoning concerned circumstances in which a party had already deployed such material in seeking a freezing order and could not then prevent its use on the merits. The narrow exception identified in Family Housing Association (Manchester) Ltd v Michael Hyde and Partners [1993] 1 WLR 354 did not apply. The extract was therefore disregarded.
2. Assistance. The court considered whether the claimant reasonably needed a McKenzie Friend and, if so, the proper scope of assistance. Relevant considerations included the claimant’s marked dyslexia and difficulty with substantial written material, the technical nature and volume of the case, his likely difficulty presenting his strongly held views dispassionately, the public importance of the construction issue, and the inequality between a litigant in person and represented opposition.
3. Right of audience. Assistance and advocacy by a McKenzie Friend were justified. Although a right of audience for a lay person is exceptional, advocacy would assist the claimant and the court and promote efficient conduct of the trial. The permission was not open-ended and could be withdrawn if abused, if the trial was delayed, or if the duties owed to the court and the requirements of the Civil Procedure Rules were not respected.
4. Conduct of litigation. The claimant was required to retain conduct of the claim and remain the defendant’s point of contact. Mr Moore could assist with documents, preparation and advocacy, but permission did not authorise him to conduct the litigation on the claimant’s behalf.
5. Permission was granted for Mr Moore to act as the claimant’s McKenzie Friend and advocate, subject to those conditions. The costs of the application were provisionally to be costs in the case.