March 2025 Case Summary: McKenzie v McKenzie [1970] 3 All ER 1034
Monday, 21 Apr 2025, 16:44
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Edited by Gayle Cosgrove, Monday, 21 Apr 2025, 18:27
Citation: McKenzie v McKenzie [1970] 3 All ER
1034
Court: Court of Appeal
(Civil division)
Date: 12th
June 1970
Procedural History: Family
Court – Defended Divorce - 1969
Judges: Davies LJ, Sachs
LJ, Karminski LJ
Legal Issues: Was a
Litigant in Person (‘LiP’) entitled to be accompanied in court by a legal
professional of a different jurisdiction, for the purposes of prompts, the
calling of witnesses and cross-examination suggestions, and did the removal of
the friend cause prejudice to the LiP and procedural irregularities that required
remedy through retrial.
Mrs Maizie McKenzie and Mr Leveine McKenzie initiated divorce
proceedings in 1965. Mrs McKenzie made claims of cruelty against Mr McKenzie,
and Mr McKenzie made claims of cruelty and adultery against Mrs McKenzie and
Joseph Graham.
Due to the complexities of the defended divorce (a refusal
to agree that the marriage has irretrievably broken down or the contents
of the petition cannot be agreed upon), a trial to discern the difficult and
complex questions of facts was ordered. This 10-day trial started on the 13th
June 1969, and concluded on the 27th June 1969.
However, the legal aid certificate held by Mr McKenzie had
been discharged prior to the trial taking place, at the end of 1968. As a
result, Mr McKenzie represented himself as a LiP, and the
firm who had been representing him via legal aid, freely provided a young Australian
barrister by the name of Ian Hanger, to accompany Mr McKenzie and assist him
with prompts through the proceedings given Mr McKenzie was now without legal
representation in a complex defended divorce case.
Lloyd-Jones J., on finding out Ian Hanger represented the
former solicitors of Mr McKenzie, told him that he must not take part in the
proceedings, and this was understood by Ian Hanger that he was not to assist Mr
McKenzie by prompting, and thus left the court.
At the end of the 10-day trial, Lloyd-Jones
J. granted Mrs McKenzie a decree nisi on the grounds of cruelty, and dismissed
Mr McKenzie’s claims of cruelty and adultery.
Mr McKenzie made an appeal on 5 counts:
Count 1. the
decision of Lloyd-Jones J. was against the weight of evidence.
Count 2. that
on the facts Lloyd-Jones J. ought to have found that the wife had committed
adultery.
Count 3. that
Lloyd-Jones J. had been wrong in excluding Ian Hanger from assisting Mr McKenzie
in the conduct of his case, thereby prejudicing Mr McKenzie in the conduct of
his case.
Count 4. that
Lloyd-Jones J. had been wrong in holding that the evidence of the alleged
co-respondent, Mr Joseph Graham, was uncorroborated.
Count 5. that
Lloyd-Jones J. has been wrong in disregarding a statement of a consultant
psychiatrist from St. Giles Hospital contained in a report produced during the
trial.
Decision:
All three Court of Appeal judges agreed that Mr Hanger’s presence
and assistance to Mr McKenzie would also have assisted the court, and that Lloyd-Jones J. was wrong in stopping Mr Hanger from doing so.
The orbiter of Lord Tenterden C.J., from the case of Collier
v. Hicks (1831) [1]
was quoted by Davies LJ and Sachs LJ, in that “Any person, whether he be a
professional man or not, may attend as a friend of either party, may take
notes, may quietly make suggestions, and give advice; but no one can demand to
take part in the proceedings as an advocate, contrary to the regulations of the
court as settled by the discretion of the justices.”
It was also noted by Sachs LJ., that the longer the trial is,
the greater the need of assistance to a LiP, and that no amount of assistance
from the court, from the Judge or from opposing counsel can make up for the
lack of a litigant having their own legal representation.
Sachs LJ stated clearly that it is in the public
interest that LiPs have available aid when conducting their case. That includes
having a friend by their side.
Mr McKenzie was successful on appeal for count 3, and a re-trial under a different Judge was ordered by an unanimous decision on counts 1 and 2. All other counts were dismissed.
What happened next?
This case certified the pressence and the role of a McKenzie Friend.
This allows people who are self-representing to be supported
and assisted in court. This friend does not have to be legally trained, and
the friend can assist with things such as understanding legal jargon and the
preparation of necessary documents. However, a McKenzie Friend cannot speak
for their party in court, and that any advice offered is unregulated and does not have professional accountability.
March 2025 Case Summary: McKenzie v McKenzie [1970] 3 All ER 1034
Citation: McKenzie v McKenzie [1970] 3 All ER 1034
Court: Court of Appeal (Civil division)
Date: 12th June 1970
Procedural History: Family Court – Defended Divorce - 1969
Judges: Davies LJ, Sachs LJ, Karminski LJ
Legal Issues: Was a Litigant in Person (‘LiP’) entitled to be accompanied in court by a legal professional of a different jurisdiction, for the purposes of prompts, the calling of witnesses and cross-examination suggestions, and did the removal of the friend cause prejudice to the LiP and procedural irregularities that required remedy through retrial.
Concurring opinions: Davies LJ, Sachs LJ, Karminski LJ
Dissenting opinion: None
Facts:
Mrs Maizie McKenzie and Mr Leveine McKenzie initiated divorce proceedings in 1965. Mrs McKenzie made claims of cruelty against Mr McKenzie, and Mr McKenzie made claims of cruelty and adultery against Mrs McKenzie and Joseph Graham.
Due to the complexities of the defended divorce (a refusal to agree that the marriage has irretrievably broken down or the contents of the petition cannot be agreed upon), a trial to discern the difficult and complex questions of facts was ordered. This 10-day trial started on the 13th June 1969, and concluded on the 27th June 1969.
However, the legal aid certificate held by Mr McKenzie had been discharged prior to the trial taking place, at the end of 1968. As a result, Mr McKenzie represented himself as a LiP, and the firm who had been representing him via legal aid, freely provided a young Australian barrister by the name of Ian Hanger, to accompany Mr McKenzie and assist him with prompts through the proceedings given Mr McKenzie was now without legal representation in a complex defended divorce case.
Lloyd-Jones J., on finding out Ian Hanger represented the former solicitors of Mr McKenzie, told him that he must not take part in the proceedings, and this was understood by Ian Hanger that he was not to assist Mr McKenzie by prompting, and thus left the court.
At the end of the 10-day trial, Lloyd-Jones J. granted Mrs McKenzie a decree nisi on the grounds of cruelty, and dismissed Mr McKenzie’s claims of cruelty and adultery.
Mr McKenzie made an appeal on 5 counts:
Count 1. the decision of Lloyd-Jones J. was against the weight of evidence.
Count 2. that on the facts Lloyd-Jones J. ought to have found that the wife had committed adultery.
Count 3. that Lloyd-Jones J. had been wrong in excluding Ian Hanger from assisting Mr McKenzie in the conduct of his case, thereby prejudicing Mr McKenzie in the conduct of his case.
Count 4. that Lloyd-Jones J. had been wrong in holding that the evidence of the alleged co-respondent, Mr Joseph Graham, was uncorroborated.
Count 5. that Lloyd-Jones J. has been wrong in disregarding a statement of a consultant psychiatrist from St. Giles Hospital contained in a report produced during the trial.
Decision:
All three Court of Appeal judges agreed that Mr Hanger’s presence and assistance to Mr McKenzie would also have assisted the court, and that Lloyd-Jones J. was wrong in stopping Mr Hanger from doing so.
The orbiter of Lord Tenterden C.J., from the case of Collier v. Hicks (1831) [1] was quoted by Davies LJ and Sachs LJ, in that “Any person, whether he be a professional man or not, may attend as a friend of either party, may take notes, may quietly make suggestions, and give advice; but no one can demand to take part in the proceedings as an advocate, contrary to the regulations of the court as settled by the discretion of the justices.”
It was also noted by Sachs LJ., that the longer the trial is, the greater the need of assistance to a LiP, and that no amount of assistance from the court, from the Judge or from opposing counsel can make up for the lack of a litigant having their own legal representation.
Sachs LJ stated clearly that it is in the public interest that LiPs have available aid when conducting their case. That includes having a friend by their side.
Mr McKenzie was successful on appeal for count 3, and a re-trial under a different Judge was ordered by an unanimous decision on counts 1 and 2. All other counts were dismissed.
What happened next?
This case certified the pressence and the role of a McKenzie Friend. This allows people who are self-representing to be supported and assisted in court. This friend does not have to be legally trained, and the friend can assist with things such as understanding legal jargon and the preparation of necessary documents. However, a McKenzie Friend cannot speak for their party in court, and that any advice offered is unregulated and does not have professional accountability.
Case references
[1] Collier v Hicks 109 E.R. 1290, [1831] 6 WLUK 42
Case law links:
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WestLaw (account required)
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