Hearsay ... the Journal of the Bar Association of Queensland
OOPS. Your Flash player is missing or outdated.Click here to update your player so you can see this content.
Supreme Court Oration Print E-mail

oration_intro.jpgThe 2014 Supreme Court Oration was delivered on 23 April in the Banco Court by Dame Hazel Genn QC, Dean of the Faculty of Laws at the University College London. Dame Hazel’s address was titled “Do it Yourself Justice: the challenge of self representation in the English Courts”.

Dame Hazel highlighted the importance of the challenge facing the legal system:

‘Self representation in English Courts has been on the increase over the past decade, especially following major changes to the UK legal aid system under the Legal Aid and Sentencing and Offenders Act 2012. These litigants present a major challenge for the English adversarial system. Faced with the question of how to deliver access to justice to these litigants, the judiciary are considering how to adapt adversarial procedure and, more controversially, openly discussing moving to a more explicitly inquisitorial system…..

In the absence of civil and family law legal aid and reduced free advice services there is an urgent need to facilitate effective access to courts whose purpose is to serve all members of the public in a peaceful resolution of disputes. The challenge now is to make our procedures more accessible while maintaining the quality and values that have characterised our system of justice. Litigants with meritorious cases are entitled to substantively just and consistent determinations on the law and facts, whether or not they are in a position to retain legal representation. It is critical to address these challenges or face the prospect that increasingly citizens with justified legal claims will abandon their rights and relinquish the courts to determined ‘’querulous’’ litigants. Or, more worryingly, perhaps they will turn to the types of self help measures that the public justice system was intended to replace.’

 The full text of Dame Hazel’s speech will be published by the Supreme Court Library in the 2014 Queensland Legal Yearbook.

In the audience was Ian Hanger, the original ‘McKenzie friend’ from the case of McKenzie v McKenzie [1970] 3 All ER 1034. That case concerned the divorce of Mr Leveine McKenzie and Maize McKenzie. At first instance, Mr Hanger who had not been admitted in England but had been admitted in Queensland had appeared in court beside Mr McKenzie, not as counsel, but in an advisory and voluntary capacity. Mr McKenzie was otherwise unrepresented at trial, as his legal aid had been terminated. The trial judge had originally ruled that Mr Hanger could not sit at the bar table and prompt Mr mckenzie.. He told him that he could sit in the back of the court room and talk to Mr Mckenzie during adjournments.

On Appeal, however, Davies LJ (Sachs and Karminski LJJ concurring) found instead that Mr Hanger was entitled to appear as he did advising Mr McKenzie on difficult questions of fact and law, relying on obiter of Lord Tenterden in Collier v Hicks. In that case, Lord Tenterden said that any person, whether professional or not, may attend as a friend of either party and may make suggestions and give advice. The denial of Mr McKenzie’s right to have Mr Hanger attend in such a capacity was held to amount to prejudice against Mr McKenzie at trial, and so a retrial was ordered.

In her address Dame Hazel discussed the implications of the increased use of McKenzie friends in the UK and the emerging trend of the friends to charging fees for their services. She referred to the report, published this April, of the UK Legal Service Consumer Panel entitled ‘Fee-charging McKenzie Friends’. In their report, to the ire of many members of the legal profession, the panel endorsed this practice as further evolution in the provision of legal services driven by the increased use of McKenzie friends in response to recent reforms increasing the threshold for the provision of legal aid in the UK.

| | | | | |