I revisited the case of Re H (Children)  EWCA Civ 1797 recently, having read a blog post about it on Suesspicious Minds entitled Oh Lord, won’t you buy me, a McKenzie Friend? (Yes I know, my song title is inferior to his). As pointed out in that post its an authority which is not on Bailii although it is accessible on subscription services. This blog post will probably make more sense if you read the Suesspicious Minds post first.
It's been like an itch I had to scratch. The question that was bothering me having read the Suesspicious minds post was really this : what amounts to “conduct of litigation”, and if it is right to give it the broad interpretation apparently endorsed by the CoA in this case, should courts be requiring formal applications to be made by McKenzie friends as a matter of course (which plainly does not happen at the moment)?
At the moment the McKenzie friend guidance provides for a right of reasonable assistance (which on a layman’s interpretation one might think could include assistance with preparing documents), but correctly points out that conducting litigation is a criminal offence, and that the court should only grant such rights exceptionally, not just for convenience.
The guidance does not define “conducting litigation”, but it does state “MFs may not: i) act as the litigants’ agent in relation to the proceedings; ii) manage litigants’ cases outside court, for example by signing court documents; or iii) address the court, make oral submissions or examine witnesses. ”, which I have always (until Re H) considered represent an adequate summary of “conduct of litigation” (i and ii) and rights of audience (iii). This narrower interpretation is consistent with various bar council guidance (FAQ 37, FAQ 64 and Public Access Guidance). More importantly the definition of “right to conduct litigation” in the Courts and Legal Services Act 1990 is the right
“(a) to [issue] proceedings before any court [in England & Wales]; and
[(aa) to commence, prosecute and defend such proceedings; and]
(b) to perform any ancillary functions in relation to proceedings (such as entering appearances to actions)." (s119 as amended).
In essence this definition was amended by the LSA 2007 to match the definition there, and the changes were in force from 2010 (and note that the Bar Council FAQ doesn't seem to have been amended to reflect the LSA changes in particular the "commence prosecute and defend" bit).
The public access guidance says
“While we cannot give definitive advice on the interpretation of the law, it is clear that undertaking the following work is likely to amount to conducting litigation:
(1) issuing proceedings;
(2) acknowledging service of proceedings;
(3) giving the barrister's address as the address for service of the party for whom the barrister is acting;
(4) signing a statement of truth on behalf of a client;
(5) issuing applications and taking other formal steps in proceedings;
(6) issuing notices of appeal. ”
And of course it goes on to approve the drafting of documents by counsel on the basis that this presumably is not conduct of litigation. How then can the drafting of documents by any other person amount to conduct of litigation?
The Court of appeal say "Even if one takes away the finding of fact that the mother was intimidated from that hearing, there seems to me to be adequate reasons for the judge to have acted as she did." Apart from the allegation of intimidation by the Mckenzie friend which was found to have occurred by the judge, the only other reason given for declining to permit the Mckenzie a role was the improper conduct of litigation through the partial drafting of a document. It is difficult therefore to infer anythning but an endorsement of the approach taken by court of first instance to the conduct of litigation.
However, whilst the appellan Father remained unrepresented on appeal, the children were represented by leading counsel. Nonetheless, it does not appear from the transcript in Re H that the Court of Appeal were referred to the definition of conduct of litigation contained in the Courts and Legal Services Act / Legal Services Act and I wonder if their view might have been different if they had been?
The only cautionary note I suppose, is that the 2010 amendments to s119 the C&LSA 1990 arguably broaden the scope of “conduct of litigation” as they now include the “prosecution” and “defence” of an action. Hansard may tell us whether the purpose was to clarify or broaden (but frankly I'm not that much of a keener). Whatever the position it’s now slightly unclear what the correct approach is vis a vis McKenzies, which is rather unfortunate less than a month before D day - an event which the Court of Appeal remarked upon with a degree of concern in the judgment itself, saying there would be more of this sort of issue coming up.