It was not appropriate to make a costs order against two McKenzie friends

In R (on the application of Laird) v Secretary of State for the Home Department and (1) Belinda McKenzie (2) Sabine McNeil [2016] EWHC (QB), the defendant secretary of state applied for a costs order against two additional parties who had been the claimant’s McKenzie friends. The claimant had had legal assistance from two McKenzie friends.

The claimant’s renewed application for permission to bring a claim for judicial review was refused, the judge holding that the grounds were unarguable and without merit. The defendant applied for costs and asked the court to consider asking the McKenzie friends to show cause as to why they should not pay a proportion of the costs.

The court ordered the claimant to pay the defendant’s costs in the sum of £4,421 and indicated that the McKenzie friends might be responsible for £2,000 of that sum. The McKenzie friends, who were not present at the hearing, were given an opportunity to apply for a hearing to show cause.

Simler J held that (1) Assistance from a McKenzie friend for an unrepresented litigant was a very important matter. McKenzie friends should not be deterred from assisting unrepresented litigants through fear of being subjected to a costs order. However, there was much guidance to McKenzie friends as to what they could and could not do. Provided they did not step outside the remit of their role, they would have no reason to fear a costs order. An order joining adding McKenzie friends as parties to litigation for the purposes of costs only would occur in exceptional circumstances. There was no reason why McKenzie friends should be treated differently from any other non-party. (2) The McKenzie friends had overstepped the mark, wasted costs and had acted without the claimant’s express authority. However, it was not appropriate to make an order for costs because of the impact it would have on them and the absence of a warning that a costs order might be made against them personally. Accordingly, the order for costs was set aside and the costs of the case were to be borne solely by the claimant.

Simon Butler was instructed on behalf of Belinda McKenzie and Sabine McNeil.

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