MCKENZIE FRIENDS AND THE THREE WISE MONKEYS: A DISCRETION TO BE EXERCISED RARELY

In Ravenscroft -v- Canal & River Trust [2016] EWHC 2282 (Ch) Chief Master Marsh considered the law relating to allowing a McKenzie friend to be permitted to act. (This case also considered the use of without prejudice correspondence in court,  this will be dealt with in a separate post).

“…the conduct of civil litigation is not the same as pursuing a public campaign. Civil litigation must be conducted in accordance with the Civil Procedure Rules and the practice in the Chancery Division explained in the Chancery Guide. The parties to litigation, together with the advocates, have duties to the court which must be respected.”

THE CASE

The claimant was bringing an action relating to the defendant’s seizure of his narrow boat the “Three Wise Monkeys”. The boat had been seized, the claimant alleged unlawfully.  There were issues of construction of general importance , in particular of the meaning, “main navigable channel” and both parties agreed that it was desirable that the issue be considered in the High Court.

The original particulars of claim ran to 121 pages with 473 additional pages of documentary evidence annexed to it. The particulars of claim had been struck out earlier, but the action had not been. The claimant was ordered to file amended particulars which had now been filed and were unobjectionable.  The trial would take place in 2017.

THE CLAIMANT’S APPLICATION IN RELATION TO A McKENZIE FRIEND

1. Mr Ravenscroft’s application asks for the court’s permission for Mr Moore to be accepted as his McKenzie Friend. The essential points made by Mr Ravenscroft are:

i) He is largely illiterate and therefore has difficulty reading and understanding the statutory and other background material;

ii) His emotional involvement with the issues make it impossible for him to deal with the matter calmly;

iii) He has no funds with which to engage professional representation and Mr Moore’s agreed to provide help without any re-imbursement;

iv) Mr Moore has a great deal of relevant experience and knowledge.

THE MCKENZIE FRIEND

1. Mr Moore has provided a Curriculum Vitae. He says that he has represented himself, and companies of which he has been an officer, on a number of occasion in various different courts and he represented himself in proceedings against the CRT when six boats in his care were served with section 8 notices under the 1971 Act demanding their removal from the waterway. He instigated proceedings in the Chancery Division which involved two trials and two trips to the Court of Appeal. He was ultimately successful. He expresses a willingness to help Mr Ravenscroft and the court and he goes on to say:

“I have further agreed to do this gratis, being understanding of his straightened situation, and because I have sympathy with the feelings of a victim of very similar circumstances to my own.

His action promotes no cause of my own, seeing as I have already won my own case, and I look after no boats affected by immediately relevant legislation. I’m simply seeking to assist in that area of law, with which I have necessarily become acquainted through research in my own field. My personal interest is solely with the upholding of justice.”

THE DEFENDANT’S OBJECTIONS

The defendant did not object to the use of a McKenzie Friend. However it was stated that Mr Moore’s involvement was part of a general campaign.  Mr Moore had been a party to a number of actions and subject to a number of (unsatisfied) costs orders. He had posted a number of online observations about the Defence in the action some 20 minutes after it had been filed.

THE MASTER’S DECISION

Practice note [McKenzie Friends: Civil and Family Courts] [2010] 1 WLR 1881

1. Current guidance is contained in this Practice Note. It emphasises that McKenzie Friends do not have a right of audience or a right to conduct litigation and the court should be slow to grant any application for a right of audience or for a right to conduct litigation to any layperson. Such an application should not be granted for mere convenience. At paragraph [21] examples are given of the sort of special circumstances which have been held to justify the grant of a right of audience to a layperson and these include health problems which preclude the litigant from addressing the court and that the litigant is relatively inarticulate. An order granting a lay person a right of audience is exceptional.

Decision

1. To my mind the relevant starting point is to consider whether Mr Ravenscroft is someone who reasonably needs the assistance of a McKenzie Friend and to go on to consider, if such assistance is reasonably required, the scope of the assistance which the court should permit. This involves not just a consideration of Mr Ravenscroft’s personal position but also the context in which the application arises, the guidance in the Practice Note and the principles set out in the overriding objective. It seems to me that with those considerations in mind, there are three crucial points:

i) Mr Ravenscroft has asserted, and it has not been disputed, that he is nearly illiterate. He suffers from a marked degree of dyslexia and has difficulty in understanding substantial amounts of written material. He also says he is prone to inarticulacy due to his strongly held views about the subject matter of this claim.

ii) The legal aspects of this claim are highly technical and involve the construction of the expression main navigable channel as used in the British Waterways Act 1971. The scope of the written materials which Mr Ravenscroft will seek to deploy at the trial of this claim can be seen from the appendixes to the original version of the particulars of claim. Although not all of that material is relevant, I have no doubt that Mr Ravenscroft would have very real difficulty in presenting his case at the trial without some assistance.

iii) It is of some real significance that the CRT, which opposes Mr Ravenscroft’s application, accepts the central point in his claim is one of real public importance and one which requires determination in the High Court. To my mind this adds considerable weight to Mr Ravenscroft’s application on the basis that if he is not provided with any assistance, there will be an inequality of arms, particularly where he is facing the wealth of legal and advocacy experience possessed by Mr Stoner QC.

1. I am in no doubt that this is an appropriate case for Mr Ravenscroft to be permitted access to a McKenzie Friend for the purposes of obtaining assistance. Furthermore, the realities of this claim are as such that he would be at an enormous disadvantage if his McKenzie Friend could act as an advocate at the trial or any further interlocutory hearings. Mr Ravenscroft has spoken briefly on two occasions and my impression of him is that he is by no means inarticulate. However, his passion for the issues comes across very clearly and I accept that he is likely to find real difficulty in putting forward the essential points of his case in a dispassionate and coherent manner. This will be far more efficiently and effectively done if someone is speaking for him. To my mind a lay advocate speaking for Mr Ravenscroft will provide assistance to the court and is likely to lead to the trial of the claim being completed far more quickly than might otherwise be the case.

2. There is a fine line between providing assistance, and advocacy assistance on the one hand and conducting the litigation on the other hand. Undoubtedly Mr Moore has played a major role in this claim to date. In practice, in view of the density of the subject matter, it is inevitable that Mr Ravenscroft will need to refer documents such as the statements of case and the witness statements to a McKenzie Friend. Nevertheless, in my judgement it is right that Mr Ravenscroft should retain conduct of the claim such that he remains the point of contact with whom the CRT will deal. It is a matter for him to decide upon the extent of which he seeks assistance and it should not be assumed automatically that a McKenzie Friend will deal with everything on his behalf.

3. The more difficult question concerns whether or not Mr Moore should be permitted to act as Mr Ravenscroft’s McKenzie Friend and as his advocate. 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. He is clearly highly intelligent and articulate and very familiar with the legal issues which arise. The first draft of the particulars of claim, however, demonstrate a tendency towards prolixity and a “kitchen sink” approach. As a consequence of the manner in which the particulars of claim were drafted, Mr Ravenscroft is now subject to an order for costs which he says he is unable to meet. It follows that the CRT has incurred a significant liability which it is unlikely to be able to recover.

4. I do not accept Mr Stoner QC’s submission that Mr Moore has become a professional McKenzie Friend. It is plain that he is vitally interested in what I might describe as boaters rights and is, no doubt, an extremely useful resource for boaters to rely upon. It is strongly in his favour that he has successfully pursued litigation against the CRT (or its predecessor) albeit that Hildyard J felt constrained to make the remarks to which I have made reference concerning Mr Moore’s cavalier attitude to the expense of litigation and orders for cost.

5. The current position is that the claim, now it has been reformulated, is in a reasonable shape. The issues, although not quite in agreed form, have emerged in a coherent way and it may well be the case that the order striking out the original claim has been salutary. Mr Moore has, with limited permission from the court, and with limited agreement by the CRT, spoken for Mr Ravenscroft at three hearings and, broadly speaking, he has done so in a helpful and measured way. It seems to me that to insist now that Mr Ravenscroft should seek out a different McKenzie Friend to appear as his advocate and to assist him is likely to be unfair to Mr Ravenscroft and, possibly, unhelpful to the CRT. On balance, I am willing to grant permission to Mr Moore to act as Mr Ravenscroft’s McKenzie Friend to provide assistance to help Mr Ravenscroft conduct the claim and to act as his advocate. That permission, however, is made, as is usual, explicitly on the basis that it is not an open ended permission and maybe withdrawn at any time if the permission is abused. The Guidance Note makes it clear that the grant of permission to a McKenzie Friend to act as an advocate is an exceptional course of action and is only justified by unusual circumstances. Both Mr Ravenscroft and Mr Moore must appreciate that the conduct of civil litigation is not the same as pursuing a public campaign. Civil litigation must be conducted in accordance with the Civil Procedure Rules and the practice in the Chancery Division explained in the Chancery Guide. The parties to litigation, together with the advocates, have duties to the court which must be respected. In particular, the trial of the claim has been given a time estimate and the trial will operate on a fixed-ended basis. Mr Moore can expect to find the court’s permission for him to act as an advocate will be withdrawn if he delays the conduct of the trial.

6. During the course of the hearing on 1^st September 2016, brief consideration was given to the possibility of standing over Mr Ravenscroft’s application to the first day of the trial. However, such a course of action was rejected for practical reasons namely that both sides in this litigation need to know from this point forward up to and including the trial how it is to be conducted on a day to day basis.

7. I will make an order accordingly. My provisional view is that the costs of Mr Ravenscroft’s application should be costs in the case. This judgment will be handed down in the absence of the parties and I invite them to agree a form of order, if that is possible, which will obviate the need for there to be a further hearing.