Mr Justice Peart, of the Court of Appeal, has made observations on the role of a ‘McKenzie Friend’ in litigation. A McKenzie Friend is a person who is permitted to attend with a lay litigant to provide assistance where required.

Background

The Plaintiffs brought an appeal against a decision of the High Court to strike out their claim. A solicitor, Angela Farrell, had previously been on record for the Plaintiffs, however Ms Farrell was struck off the Roll of Solicitors in 2014 and so could no longer represent them. Ms. Farrell however attended the hearing of the appeal as the McKenzie Friend of the Plaintiff presenting the case.

Role of McKenzie Friend

Mr Justice Peart noted that the presence of a McKenzie Friend can be of benefit to both the lay litigant and the Court and that the Court should be slow to refuse permission unless there is a “good and specified reason”. Mr Justice Peart however put an emphasis on the word “assistance” and noted that there were situations where a McKenzie Friend might become a hindrance. Mr Justice Peart gave his view that the role involved moral support, taking notes, assisting with documents and quietly prompting the litigant of points they may have forgotten. He noted that it “is a passive and limited role so as to not unreasonably interrupt the hearing”. A judge can give directions to the McKenzie Friend to ensure that there is no disruption to the hearing and may refuse to allow the McKenzie Friend to continue in their role.

Overstepped the mark

In this case Mr Justice Peart was of the view that Ms. Farrell “overstepped the mark” in the manner in which she provided assistance to the Plaintiff. He noted that she constantly interrupted the Plaintiff and hindered the interaction between the Court and the Plaintiff. Mr Justice Peart stated that the Court would have been justified in asking Ms. Farrell to cease her role as she refused to comply with the directions of the Court to allow the Plaintiff to deal with queries from the bench without interruption.

Guidelines

Mr Justice Peart stated that it may be time for guidelines to be published in respect of McKenzie Friends so that the nature of the role is understood and that the limits of the role are respected. It remains to be seen whether this suggestion will lead to the publication of such guidelines.

Butler and Butler v Nelson & Co Solicitors [2017] IECA 149