R.D. v McGuinness

• Jurisdiction: Ireland
• Judgment Date: 11 February 1999
• Date: 11 February 1999
• Docket Number: [1998 No. 256 J.R.]
• Court: High Court

R.D. v. McGuinness

R.D.

Applicant

and

District Judge McGuinness, Respondent and B.D., Notice Party

[1998 No. 256 J.R.]

High Court

Jurisdiction of court - Practice and procedure - Natural justice - In camera proceedings - Litigant in person - Friend present in court to give assistance - "McKenzie friend" - Matter to be heard "otherwise than in public" - District Judge refusing to allow friend to assist - Whether defendant entitled to assistance - Domestic Violence Act, 1996 (No. 1), s. 16(1).

Words and phrases - "Otherwise than in public" - Domestic Violence Act, 1996 (No. 1), s. 16(1).

Section 16(1) of the Domestic Violence Act, 1996 provides that :-

"Civil proceedings under this Act shall be heard otherwise than in public."

The notice party secured aninterim barring order against her husband, the applicant, which the applicant sought to have discharged. At the commencement of the hearing of that application, which was heard at the same time as the notice party's application for the barring order, the applicant, a lay litigant, sought to have in court with him a "McKenzie friend", that is, a person who is not qualified as a solicitor or a barrister, who attends court for the purpose of assisting a lay litigant during the course of the hearing, but does not act as an advocate. The notice party objected to the presence in court of such a person.

The respondent held that he had a discretion as to who could remain in court during proceedings, and having considered that the applicant was a very articulate person and that the court was experienced in protecting people who had no legal representation, ruled that the applicant was not entitled to have a"McKenzie friend" present in court. The applicant sought a declaration that he was entitled to the assistance of a "McKenzie friend" by way of judicial review in the High Court.

Held by the High Court (Macken J.), in refusing the application for judicial review, that unless there was overwhelming evidence that a fair hearing could only be secured by the attendance in court of a"McKenzie friend", civil proceedings under the Domestic Violence Act, 1996, should be held "otherwise than in public".

Obiter dictum:Except in matters of a matrimonial nature, or where the law prescribes that proceedings should be held "otherwise than in public",a party who prosecuted proceedings in person was entitled to be accompanied in court by a friend who may take notes on their behalf and quietly make suggestions and assist them generally during the course of the hearing, but who may not act as an advocate.

Cases mentioned in this report:-

Collier v. Hicks (1831) 2 B. & Ad. 663.

McKenzie v. McKenzie [1971] P. 33; [1970] 3 W.L.R. 472; [1970] 3 All E.R. 1034.

Reg. v. Leicester JJ., Ex p. Barrow [1991] 2 Q.B. 260; [1991] 2 W.L.R. 974; [1991] 3 W.L.R. 368; [1991] 3 All E.R. 935.

Judicial review.

The facts have been summarised in the headnote and fully set out in the judgment of Macken J., infra.

On the 29th June, 1998, the applicant sought leave to apply for judicial review, which application was refused by the High Court (Geoghegan J.). The applicant appealed to the Supreme Court which, by order of the 17th July, 1998, and further order of the 23rd October, 1998, granted leave to the applicant to apply by way of judicial review for:-

"A declaration that the applicant, when acting in person, is entitled to be accompanied in court by a friend who may take notes on his behalf and quietly make suggestions and assist him generally during the hearing."

The application was heard by the High Court (Macken J.) on the 12th January, 1999.

Cur. adv. vult.

Macken J. 11th February, 1999

This is an application brought by the applicant against a decision of the respondent given on the 29th May, 1998, refusing the applicant liberty to be accompanied in the District Court by a friend, for the purposes of taking notes on his behalf, during the course of a hearing in a family law matter. The applicant's wife, now the notice party, had secured an interim barring order against the applicant, and he had in turn, filed an application to discharge thatinterim order. In relation to that application and the hearing proper of the wife's barring order application, the applicant had sought to have in court with him a friend identified as a Miss P.H.

The interim barring order was granted on the 14th May, 1998, by Judge Mary Martin sitting at Portlaoise District Court. This was secured, in the usual way, ex parte.It was alleged by the applicant that there were no grounds for applying for such an order, but insofar as the merits of any such application are concerned, these are not really matters with which I have to be concerned at this time.

The applicant, prior to the ex parte application by the notice party, had already applied for legal aid (in relation to the matrimonial difficulties existing between them), to the law centre in Portlaoise and there was informed that that centre could not assist him as it already had the notice party as a client. The applicant was referred to another law centre at Tullamore in Co. Offaly. He averred in his affidavit in this application to the fact that there was no possibility of securing an appointment with the law centre there for some weeks, and he deposed further to the fact that he sought to secure a solicitor in private practice in Portlaoise but again was unable to secure an appointment until a week later. He averred to having then tried, through his cousin, Miss P.H. (he seeks to have Miss H. in attendance during the course of the hearings), to secure the services of a firm of solicitors in Dublin, but was not successful.

The return date for the hearing of the barring order application proper was the 25th May, 1998, and the applicant, on the 21st May, 1998, issued a plenary summons against Ireland, the Attorney General and District Judge Martin seeking, in particular, to challenge certain provisions of the Domestic Violence Act, 1996, by reference to the Constitution of Ireland. This arose out of the applicant's concerns about the hearing of the case until then. Again, I do not have to be concerned with the merits of such an application, but the applicant says it is all part of the background to his case, and part of the reason why he wishes to have a "McKenzie friend" in court.

The applicant's summons seeking to set aside theex parte barring order, was returnable for the 22nd May. On the 22nd May, District Judge Martin indicated that she would hear that application on the 25th May, 1998, that is to say, on the same day as the hearing day for the barring order application of the notice party.

The applicant was dissatisfied with the manner in which his application was dealt with in the District Court, and considered his right of access to the court might be denied or unreasonably delayed. Pursuant to an application made to the High Court on the 22nd May, leave was given to the applicant to issue a further plenary summons against District Judge Martin, and leave was given for short service of a notice of motion returnable for the 25th May, which motion was thereafter adjourned till the 28th May. In the course of the progress of that motion, it was...