Lay Litigants And Mckenzie Friends – A Positive Reaction To A Recent Trend

A recent practice direction (HC72) has provided important guidance on the role of a "McKenzie Friend" in assisting lay litigants before the civil courts.

The traditional role of a McKenzie Friend

When dealing with a case involving a lay litigant, courts tend to afford the litigant some latitude on formal procedure in recognition of the overarching right of access to the courts. As a result, the presence of a 'McKenzie Friend' has become a common feature of cases involving litigants in person.

The term "McKenzie Friend" originates from an English case, McKenzie v McKenzie1. In this case, the appellate court concluded that the trial judge was incorrect in refusing to permit a friend to assist Mr McKenzie. The court expressed the view that "...any person, whether he be a professional man or not, may attend as a friend for either party, may take notes, may quietly make suggestions and give advice."

The Irish courts have also accepted this general position. However, the Supreme Court2 has emphasised that the right of audience before it may only be enjoyed by the litigants themselves, their solicitor, or counsel instructed by their solicitor. A McKenzie Friend has no right to address the court unless invited to do so.

A trend of straying beyond the role

With the high volume of cases involving distressed borrowers before the civil courts in recent years, there have been an increasing number of cases where one of the parties appears without legal representation. In a minority of those cases, certain McKenzie Friends have been a hindrance to the courts rather than benefiting the parties to the proceedings.

In the recent decision of Butler and Butler v Nelson & Co Solicitors3, the court indicated a reluctance to refuse an application for the assistance of a McKenzie Friend but it clearly stressed the limitations of this passive role and the necessity that a McKenzie Friend understands their role and acts appropriately.

In Allied Irish Banks plc v Aqua Fresh Fish Limited, the court focused on the necessity of proper conduct on the part of a McKenzie friend stating that he or she is "...expected to behave in such a manner as reflects the mutuality of respect essential for all players participating in the administration of justice"4

A more rigorous approach

In Smith v ACC Loan Management Limited & Anor5 the Court found that the proceedings before it amounted to a clear and obvious abuse of process. In his judgment, Mr Justice Twomey voiced particular...