Kerry Underwood

MCKENZIE FRIENDS: AN ABSURD DECISION

with 4 comments


In Ravenscroft v Canal and River Trust [2016] EWHC 2282 (Ch)

 

Chief Master Marsh gave guidance in relation to McKenzie Friends.

 

He stated that the starting point was to consider whether the applicant reasonably needed such assistance. If so the scope of that assistance should be determined and that required consideration of the applicant’s personal position, the context in which the application was made, the principles in the overriding objective and the guidance in Practice Notes: McKenzie Friends: Civil and Family Courts [2010] 1 WRL 1881.

 

Here the Master held that it was appropriate to appoint a McKenzie Friend and for him to have rights of advocacy, but that is “an exceptional course of action… only justified by exceptional circumstances”.

 

The Master said that the permission was not open-ended and could be withdrawn at any time if it was abused or if the McKenzie Friend sought to delay the conduct of the trial.

 

Here the claimant had difficulty in understanding written material, as well as the technical nature of the case and thus it was reasonable for him to call on assistance. The McKenzie Friend proposed to act free of charge and had already won a similar case when representing himself.

 

However the McKenzie Friend also had a number of unmet costs orders against him, including ones in favour of the defendant here.

 

Comment

 

An absurd decision that comes very close to saying that anyone who needs representation can chose anyone and does not need to have a lawyer.

 

This representative has ignored costs orders against him and thus can represent people in court but treat court orders that he does not like with impunity.

 

Such conduct by a solicitor would result in automatic suspension and subsequent striking off.

 

Here the Master was influenced by the fact that the McKenzie Friend had helped draft the proceedings etc. and that the claim “is in a reasonable shape” and that “my impression of Mr Moore from the three hearings when he has appeared in front of me is that he is capable of acting in a measured and helpful way.”

 

The logic of this is that if I illegally prescribe medication but it works, then having acted illegally, but reasonably successfully, as a non-qualified doctor I should be allowed to conduct major surgery. If anyone may now appear as an advocate in a full High Court trial, which this case will be, where the Master accepted that it involved an issue of “real public importance” then what is the point of being a barrister or a solicitor?

 

Why train? Why qualify? Why insure? Why obey court orders? Why obey the law?

 

So anyone can now appear in court and ignore court orders as they want.

 

There will be hearingless Briggs courts. I suppose that stops the problem of McKenzie Friends.

 

 

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Written by kerryunderwood

October 13, 2016 at 8:00 am

Posted in Uncategorized

4 Responses

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  1. Regrettably, so many people cannot afford a qualified lawyer. The judge made plain this was an exceptional case where he was effectively making the best of a bad job. If your arguments were correct the applicant, due to his literacy problems, would be denied access to justice and that is a fundamental right. Courts are increasingly having to accept that due to the difficulty in obtaining legal aid, qualified lawyers are beyond the reach of many. Lawyers must also surely realise that they are qualifying to represent those lucky enough to be able to afford it, or perhaps even luckier still to get financial assistance with that representation.

    Viv Taylor

    October 29, 2016 at 11:02 pm

    • Point taken, but where do you draw the line? Unqualified people performing operations for a fee where there is a long NHS waiting list? Unqualified pilots on cheap flights for those who can’t afford proper airlines? Also gives politicians an excuse not to reintroduce legal aid. I also doubt that Mckenzie friends provide access to justice in most cases. Also paid ones seem to be as expensive as lawyers. Many cases would be taken on by lawyers on a no win no fee basis. Use of Mckenzie friends is becoming much more common, so it is no longer exceptional.

      Many thanks for commenting.
      Kerry

      kerryunderwood

      October 30, 2016 at 12:47 pm

  2. Perhaps the Judge had more access to the facts & more experience than you yourself do.
    As to no win no fee they tend to only take on easily winnable cases, so realistically no access to justice.
    Look at benefits, no legal aid to challenge benefit decisions after the government lost a court case about that sort of thing & since decided anything regarding benefits wont see the inside of a court room. No access to justice for the poorest people, & now the law breaking by benefits agencies is rampant.
    One wonders are you in fact troubled about the privilege your status enjoys & dont want Joe Bloggs getting into the game. Maybe you are special & can train & learn but an ordinary person cannot train & learn.
    My own 2 experiences ever with solicitors, the 1st was a duty solicitor after getting arrested, he simply wasnt interested & advised I pleaded not guilty, it didnt matter that I hadnt done anything wrong.
    The other was selling a house, the solicitor didnt do any of the things they billed me for, in fact I had done them myself because the solicitor wasnt doing his job. Sale of the house fell through because the other guy, a ‘cash buyer’ couldnt sell his house, when I got the solicitors bill I challenged them, they declined going to court over the matter.

    Ssscrudddy

    January 30, 2017 at 12:06 pm

    • Chief Master Marsh did indeed have more access to the relevant facts; perhaps it is forgivable that Mr Underwood has commented as he has, when he has had to rely only on that which the judgment chose to reveal.

      The single most troublesome aspect in his view has been the supposed two-fingered salute to costs orders – but what the judgment has not disclosed from the CMC’s, is that in fact the costs orders against Canal and River Trust in favour of the “relentless and obstinate” McKenzie Friend outweigh the costs orders in the reverse direction – none of which costs orders against CaRT have ever been quantified or satisfied.

      The perjorative description furthermore, came from a judge whose own costs orders and judgment against the recipient were subsequently overturned by the Court of Appeal in a unanimous decision. The Master in the decision criticised, moreover, was merely quoting the quotation of the defeated Defendant in their argument as to why the MF should be disallowed; his own first hand observations played a significant role in his “absurd” decision – as was as it should be.

      Nigel Moore

      February 4, 2017 at 10:29 pm


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