The Development of the McKenzie Friend

• Author: Judge Marie Baker
• Pages: 31-39

IRISH JUDICIAL STUDIES JOURNAL

[2017] Irish Judicial Studies Journal Vol 1 31

McKENZIE FRIENDS

Ms Justice Marie Baker, High Court

What is a ‘McKenzie friend’?

In Irish law a litigant in person may avail of the assistance of a ‘McKenzie friend’, namely

someone who may accompany the litigant to court, take notes, and offer general assistance

during the course of proceedings. McKenzie friends are of considerable benefit to litigants in

person, particularly those who find it difficult to properly articulate the arguments they wish to

make.

1

At the outset it must be stated that there is no right to a McKenzie friend per se.

Indeed, it may be more adequately described as a right to request a McKenzie friend or

perhaps a conditional right to a McKenzie friend subject to the approval of the court.

2

This

right to request a McKenzie friend is an incidence of the public’s right of access to legal

proceedings conducted in public.

3

The parameters of the role are strictly defined, and a

McKenzie friend does not have a right to appear as an advocate or to address the court on

behalf of the litigant in person. The role of a McKenzie friend is confined strictly to providing

assistance and advice to the unrepresented litigant during the course of legal proceedings.

4

They are usually allowed to accompany the litigant in person in court, organise their legal

documents and whisper suggestions to them during the course of legal proceedings.

Monnin C.J.Q.B. in Law Society of Manitoba v Pollock noted that the role of a McKenzie friend is

“limited to assisting the litigant and giving advice to the litigant, not advancing argument, cross examining or

performing any other functions that counsel usually do.”

5

McKenzie friends may only address the court

when they are invited to do so and strictly speaking, have no right of audience before the

courts. The precise role is one for the presiding judge as noted by Fennelly J. in the judgment

of the Supreme Court in Re Application for Orders in Relation to Costs by Coffey & Ors.

6

:

“This is not to say that a judge may not, on occasion, as a matter of pure practicality and convenience,

invite the McKenzie friend to explain some point of fact or law, where the party is unable to do so or

do so clearly. That must always be a matter solely for the discretion of the judge. The McKenzie friend

has no right to address the court unless invited to do so by the presiding judge.”

What is given can also be taken away, for the court retains a residual discretion to prevent a

McKenzie friend from continuing to act in that capacity where their behaviour is inimical to

the efficient administration of justice.

7

Moreover an individual will not be permitted to act as a

McKenzie friend if they are in any way connected to the proceedings. For example, in

Satchithanantham v. National Australia Bank Ltd,

8

a husband was not permitted to act as a

1

Joseph Delaney v. Allied Irish Banks P LC., Declan Taite and Sharon Barrett (Unreported) [2016] IECA 5 at

[2].

2

R v Secretary of State for the Home Department; Ex parte Tarrant [1985] QB 251; R v. Bow County Court;

Ex parte Pelling [1999] 4 All ER 751.

3

H.W.R. Wade & C.F. Forsyth, Administrative Law (10th edn, OUP 2009) 7 89.

4

R v. Bow County Court ; Ex parte Pelling [1999] 4 All ER 751; See also Damjanovic v. Maley (2002) 55

NSWLR 149.

5

Law Society of Manitoba v. Pollock (2007) MBQB 51; [2007] 5 WWR 147 ; 153 CRR (2d) 131.

6

[2013] IESC 11

7

Noueiri v. Paragon Finance Plc (No. 2) [2001] EWCA Civ 1402.

8

Satchithanantham v. National Australia Bank Ltd [2009] NSWCA 268.