Pelling, R (on the application of) v Bow County Court

Factual and Procedural Background

This opinion concerns an appeal from a decision of the Divisional Court dismissing an application for judicial review. The application challenged a refusal by a judge to permit an individual, referred to here as Defendant, to act as a McKenzie friend to Appellant in ex parte proceedings concerning contact arrangements with Appellant's son. The refusal occurred during a hearing at a County Court, where the judge declined to allow Defendant to assist Appellant as a McKenzie friend without providing reasons. Appellant proceeded without assistance and did not appeal the outcome of the substantive contact application.

Legal Issues Presented

1. Whether a litigant in person has a right to the assistance of a McKenzie friend in court proceedings, including those held in chambers or private hearings.
2. The extent of a judge’s discretion to exclude a McKenzie friend from court or chambers proceedings.
3. Whether a judge is obliged to give reasons when refusing permission for a McKenzie friend to assist a litigant in person.
4. The standing of a McKenzie friend to seek judicial review of a refusal to permit them to act in that capacity.

Arguments of the Parties

Appellant's Arguments

• Defendant, a D.Phil mathematician and experienced family dispute campaigner, contended that his role as a McKenzie friend was essential to adequately assist Appellant.
• Defendant argued that the refusal to allow him to act as a McKenzie friend was unjustified and that the judge ought to have provided reasons for the refusal.
• He referenced relevant procedural rules (Parts 1 and 39 of the Civil Procedure Rules) to support the position that assistance by a McKenzie friend promotes justice and equality between parties.
• Defendant challenged the Divisional Court’s conclusion that he lacked standing to apply for judicial review.

Respondent's Arguments

• Respondent submitted there is no general statutory duty for a judge to give reasons when exercising discretion over attendance in chambers proceedings.
• It was argued that refusal to allow Defendant as a McKenzie friend was a discretionary decision, not requiring detailed explanation.
• Respondent maintained that Defendant had no rights or locus to challenge the judge’s order by judicial review, as only the litigant in person has such rights.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by reviewing the factual context: Appellant’s ex parte application was straightforward, and Defendant’s assistance as a McKenzie friend was not essential to avoid prejudice. The court then analysed the legal status of McKenzie friends, relying on established authorities to clarify that such individuals have no independent rights or advocacy roles but provide assistance solely for the benefit of litigants in person.

The court distinguished between open court, public hearings in chambers, and private hearings, noting that judges have discretion to exclude McKenzie friends particularly in private or confidential proceedings. The court emphasized that fairness and justice require that litigants in person generally be allowed assistance unless there is good reason to refuse.

The court also considered the implications of Defendant’s professional role as a McKenzie friend, cautioning that earning a living in this capacity requires restraint to avoid indirect case management, which could justify exclusion.

Regarding the judge’s failure to give reasons for refusing Defendant’s attendance, the court acknowledged no absolute duty exists but regarded giving reasons as desirable to ensure transparency and fairness. However, in this case, no prejudice arose from the absence of reasons given the simplicity of the application and the discretionary nature of the decision.

On standing, the court agreed with the Divisional Court that Defendant had no locus to seek judicial review since only the litigant in person has rights in such matters. Even if standing existed, no remedy was appropriate as the refusal was discretionary and no procedural error was demonstrated.

Holding and Implications

The court DISMISSED THE APPEAL and refused leave to appeal to the House of Lords.

The direct effect is that the refusal by the judge to permit Defendant to act as a McKenzie friend stands, and no order for costs was made. The court clarified the legal principles governing the role of McKenzie friends, the discretion of judges to exclude them particularly in private proceedings, and the limited standing of McKenzie friends to challenge such decisions. No new precedent was established beyond confirming existing principles and emphasizing the importance of judicial discretion and fairness in these matters.