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1. This is an application brought by a Mr. Richard Daly the Applicant against a decision of the Respondent given on the 29th day of May 1998 refusing the Applicant liberty to be accompanied in the District Court by a friend, for the purposes of taking notes on his behalf, during the course of a Hearing in a family law matter. The Applicant's wife, now the Notice party, had secured an interim barring order against the Applicant, and he had in turn, filed an application to discharge that interim order. In relation to that application and the hearing proper of the wife's barring order application, the Applicant had sought to have in Court with him a friend identified as a Miss Patricia Herron.

2. The interim Barring Order was granted on the 14th May 1998 by Judge Mary Martin sitting at Portlaoise District Court. This was secured, in the usual way, ex parte. It was alleged by the Applicant that there were no grounds for applying for such an Order, but insofar as the merits of any such application are concerned, these are not really matters with which I have to be concerned at this time.

3. The Applicant, prior to the ex parte application by the Notice Party, had already applied for legal aid (in relation to the matrimonial difficulties existing between them), to the Law Centre in Portlaoise and there was informed that that Centre could not assist him as it already had the Notice party as a Client. The Applicant was referred to another Law Centre at Tullamore in Co. Offaly. He averred in his affidavit in this application to the fact that there was no possibility of securing an appointment with the Law Centre there for some weeks, and he deposed further to the fact that he sought to secure a Solicitor in private practice in Portlaoise but again was unable to secure an appointment until a week later. He averred to having then tried, through his cousin, Miss Patricia Herron (he seeks to have Ms. Herron in attendance during the course of the hearings), to secure the services of a firm of Solicitors in Dublin, but was not successful.

4. The return date for the hearing of the Barring Order application proper was the 25th May, 1998 and the Applicant, on the 21 ^st May 1998 issued a Plenary Summons against Ireland, The Attorney General and District Justice Martin seeking, in particular, to challenge certain provisions of the Domestic Violence Act 1996 Act by reference to the Constitution of Ireland. This arose out of the Applicant's concerns about the hearing of the case until then. Again, I do not have to be concerned with the merits of such an application, but the Applicant says it is all part of the background to his case, and part of the reason why he wishes to have a "McKenzie" friend in Court.

5. The Applicant's Summons seeking to set aside the ex parte barring order, was returnable for the 22 ^nd May. On the 22 ^nd May, District Justice Martin indicated that she would hear that application on the 25 ^th May 1998, that is to say, on the same day as the hearing day for the Barring Order application of the Notice Party.

6. The Applicant was dissatisfied with the manner in which his application was dealt with in the District Court, and considered his right of access to the Court might be denied or unreasonably delayed. Pursuant to an application made to the High Court on the 22 ^nd May, leave was given to the Applicant to issue a further Plenary Summons against District Judge Martin, and leave was given for short service of a Notice of Motion returnable for the 25 ^th May, which Motion was thereafter adjourned till the 28 ^th May. In the course of the progress of that Motion, it was agreed or undertaken on behalf of the District Judge, that she would not hear the case, but would arrange for another Judge to do so.

7. The foregoing is the background against which the present application is to be viewed. At the commencement of the District Court hearing in Portarlington, the Applicant requested liberty to have Miss Patricia Herron attend in Court during the hearing and to act for the Applicant as a so-called "McKenzie Friend", a term used to denote a person who is attending Court for the purposes of taking notes or of making quiet suggestions or of assisting a lay litigant during the course of a hearing, but who is not qualified as a Solicitor or Barrister, and does not act as an advocate at the hearing. Nor is such a person otherwise an officer of the Court. The Notice Party objected to the presence of Miss Patricia Herron in Court during the course of the hearing, on the grounds that Miss Herron was not a qualified legal practitioner, but was a mere member of the public.

8. It is agreed between the parties to this application, that after some exchanges and argument, the Respondent stated he had a discretion as to who remained in Court during the proceedings before him, and in the exercise of that discretion he ruled that Miss Patricia Herron should not be allowed to remain in Court. He stated that in his opinion the Applicant was a very articulate person and would not be prejudiced by not having legal representation, and said that the Court was very experienced in protecting persons in Family Law matters who appeared before that Court without legal representation, even in circumstances where other parties to the proceedings were legally represented.

9. The Applicant indicates that he notified the Respondent he wished to challenge his ruling by way of Judicial Review and says he drew the Respondent's attention to the existence of what the Applicant called a "decision" of the Supreme Court in what he said was a "similar matter". This in fact is a reference to an Order made in a case entitled Quinn v The Governor and Company of the Bank of Ireland and Others , on the 13 ^th day of October 1995, an Order to which I will return in due course.

10. From the decision and order of Mr. Justice Geoghegan, the Applicant appealed to the Supreme Court. By Order dated the 17th July 1998, as varied by further Order of the 23rd October 1998, the Applicant was granted leave to issue these judicial review proceedings. The Notice of Motion herein was dated the 23rd July 1998, and seeks the following relief:

11. It has been urged upon me by the Applicant in support of his declaration to be entitled to have a friend in Court, that she is no different to any officer of the court or any other person who is entitled to be in attendance, such as the Court Registrar, Counsel and Solicitor for other parties, or the Garda. He submitted that having such a friend in Court does not constitute the hearing one “in public”. He accepts that cases of the type circumscribed by the provisions of the Domestic Violence Act 1996, are ones which must be heard “in camera” for the purposes of maintaining privacy. He argues that the absence of such a friend is prejudicial to him, although the prejudice is alleged to be the fact that he is a lay person not having any legal representation. He points to the fact that there has been no objection to the conduct or likely conduct of the proposed friend. He submits that a judge, during the course of a hearing, would be in a position to control any activities of the friend in attendance, and therefore the presence of such a friend does not in any way deprive the Court from exercising its jurisdiction as to the management and supervision of a case before it.

12. The Applicant claimed - and this is not in dispute - that the Respondent indicated he had a discretion as to how the case might be dealt with, and in particular as to the persons who would be entitled to be in Court, and that in the exercise of this discretion he had ruled against the attendance by Miss Herron in Court. The Applicant submitted that such a discretion does not vest in the Respondent, and that the discretion which does vest in him is limited to one exercisable in respect of witnesses only. He says this follows from the Act itself, including Section 16(3) which states that the civil procedure should be as informal as possible.

13. Mr. Daly further submitted that the administration of justice requires that the District Court abide fully by the decision in the Quinn case, mentioned above. He finally submitted that, having regard to the fact that the Supreme Court overturned the decision of Mr. Justice Geoghegan (to refuse liberty to issue Judicial review proceedings), the Supreme Court had thereby intimated or given an indication that it was in sympathy with the Applicant’s view of the law, and that, in fairness, the position ought to be that the Respondent should be compelled to permit the Applicant to exercise his claimed right by permitting the proposed McKenzie friend to be attendance during the course of the hearing.

14. Mr. O’Donovan on behalf of the Respondent argued that the Respondent had acted wholly within jurisdiction, and he cited in support of this, the provisions of Section 16 of the Act of 1996 which provides that the proceedings in question shall be held otherwise than in public. He submitted that this is an express provision and it reads as follows:

15. He said that the statutory rule is followed by the 1997 edition of The District Court Rules under Order 59, Rule 3, which states as follows:

16. The words “the Act” refer to the Domestic Violence Act 1996. Mr. O’Donovan submitted that the proposed McKenzie friend is not a witness, is not an officer of the Court, and has not been permitted by the judge, in the exercise of his discretion, to be allowed attend. In the circumstances, Miss Herron is a mere member of the public and could only be in attendance as such.

17. He submitted that the Applicant is trying to establish new law, and suggested that the right which is being contended for is sought to be imposed antecedent to the judge’s right to regulate proceedings in Court, regardless of the view of the Respondent, and regardless of the objection raised by Counsel on behalf of the Notice Party.

18. Mr. O’Donovan submitted that there is a proper objection to the attendance of such a person based on public policy grounds, in that officers of the Court take an oath and are subject to the court and to their own regulatory bodies in relation to the manner in which they discharge their functions in court. A so-called “McKenzie friend” is subject, however, to nothing, and to no control and therefore may behave as they wish. He also argued that in the case of McKenzie v. McKenzie (1971) P.33 which affirmed, obiter dicta, the words found in the earlier 1871 case of Collier v. Hicks , (1831) the key words found in McKenzie v. McKenzie were “may attend”, but that the case did not, on any interpretation, establish a legal right to such a friend, and that the matter is at all times one for the trial judge.

19. Mr. O’Donovan also submitted that the force which the Applicant sought to be placed on the Order made in the Quinn case, supra, is one which cannot be justified, since there is in existence only an Order, and despite diligent searches, it had not been possible to locate a note of the judgment.

20. It is quite clear that the first of the cases in which the question of the entitled of persons to attend in Court is Collier v. Hicks supra, in which certain comments were made. obiter, and which were considered subsequently in the case of McKenzie v. McKenzie supra, a decision which gave rise to the nomenclature “a McKenzie friend”.

21. That case involved a defended divorce suit in which there were cross charges of cruelty and adultery involving difficult and complex questions of fact, necessitating a lengthy trial. The petitioner appeared in person to conduct his case. His former Solicitors sent a young Australian barrister to assist the husband gratuitously in the conduct of his case by sitting beside the husband in Court and prompting him. The Judge, on ascertaining that the Australian Barrister represented the Petitioner's former Solicitors, indicated that he could not take part in the proceedings. This was understood by the Barrister as meaning that he must not assist the husband by prompting and he left the Court. The case lasted ten days and the husband’s petition alleging cruelty was dismissed.

22. The husband appealed against the dismissal of his petition, and the Court of Appeal, allowing the appeal, found that every party had the right to have a friend present in Court beside him, to assist by prompting, taking notes and quietly giving advice. That Court also held that by reason of the Judge’s intervention the husband had been deprived of that right and therefore there had been an irregularity in the proceedings, and that in those circumstances there was an onus on the opposing party to show that the other party had not been prejudiced. I notice that in that case Counsel on behalf of the wife conceded that the Judge had erred in the view which he took about Mr. Hanger’s presence (Mr. Hanger being the Australian Barrister instructed by the former Solicitors) next to the husband in Court, and conceded that the husband was in law entitled to the assistance and prompting of Mr. Hanger. The case made on behalf of the wife was that the denial of such assistance was no more than an irregularity and did not make the trial a nullity.

23. In that case all three Judges of the Court of Appeal decided that, inter alia, by reason of the fact that the Judge directed that the Australian assistant not attend in Court and not assist the husband, this rendered the trial unsatisfactory. It was unsatisfactory for a number of reasons, and not simply because of the non-attendance of the Australian Barrister in question. Each of two Judges (and Karminski L.J. agreeing) relied on the words expressed by Lord Tenterden in the course of the judgment in Collier v. Hicks supra.

24. There is however in the course of the judgment no indication as to whether or not these were proceedings which were circumscribed by any provision equivalent to the provisions of Section 16 of the Domestic Violence Act, 1996. That provision states that civil proceedings under the Act are to be heard “otherwise than in public”, and there appears to have been no debate in the McKenzie v. McKenzie case centred around any equivalent statutory provision.

25. Another English case in which the matter arose a short time subsequent to McKenzie v. McKenzi is R. v. Leicester City Justices and Anor. ex parte Barron (1991) 2QB. The facts in that case did not involve matrimonial matters, but rather concerned liability for orders in respect of alleged non- payment of Community Charges. In the course of those proceedings, at the outset of the hearing, a Solicitor acting on behalf of the applicants asked that a friend be allowed sit with them to give advice and assistance, which request was refused by the Justices. The matter proceeded in the absence of Solicitor or friend. In subsequent Judicial Review proceedings, the Applicants challenged the decision of the Justices on the grounds that the applicants had been entitled to the assistance of their friend in opposing the Summonses and that the Justices had, by refusing this access, unfairly acted to the prejudice of the applicants in depriving them of that right. A Divisional Court concluded that they had no such right and had not in any event been prejudiced, and dismissed the application.

26. On appeal it was held by the Court of Appeal, allowing the appeal, that the administration of justice had to be open and fair, and had to be seen to be fair, that fairness dictated that a party of full capacity conducting proceedings in person, should be afforded all reasonable facilities to enable him to exercise his right of audience, including the assistance of a friend to give advice and take notes unless, in the interests of justice and in the exercise of its powers to maintain order and regulate proceedings before it, the Court ordered otherwise: and that, accordingly the Justices had erred, and since their error created apparent and potential unfairness, and since it was unclear whether the applicants had thereby suffered prejudice, the decision would be quashed.

27. The Divisional Court in that case unanimously held that there was no legal right in a litigant to have in attendance a so called “McKenzie friend”, but rather an entitlement which might arise at the discretion of the Court. On the appeal it was recognised and accepted that the early authorities did not in any way constitute binding authorities on that Court. It was said by Master of the Rolls, Lord Donaldson, (at page ) under the heading “the Appeal”:

28. I agree with the statement by the Master of the Rolls that the earlier authorities of Collier v. Hicks and McKenzie v. McKenzie could not constitute binding authorities, and certainly not in this jurisdiction, the first of them being a case concerning a right of audience (immaterial for the present case as was stated by the Master of the Rolls). In the second case it appeared to be a question of unfairness in denying a litigant in person a particular form of assistance. In Collier v. Hicks , supra, Lord Tenterden stated as follows at page 668:

29. On the other hand in McKenzie v. McKenzie , supra, this was a divorce case involving cross charges of cruelty and adultery which lasted ten days. There was no evidence from the reported Judgment that these proceedings were in camera nor that the proceedings were ones to which the public ordinarily had no access.

30. Finally, so far as the position of such a friend in this jurisdiction is concerned, I have not been furnished with any decided case on the matter. However, I have been referred to the Order made by the Supreme Court in the Quinn case, supra. Although no written judgment on the matter appears to be available, nevertheless, I think I am entitled to assume, having regard to the words used in the Order made by the Supreme Court that some or other if not all of the authorities in the United Kingdom were fully opened to the Supreme Court and were taken into account by the Supreme Court in coming to its finding and in making the Order which it made.

31. I am entitled to do so having regard to the fact that the order recites the very words which appear in the United Kingdom cases, and I consider it highly unlikely that these words would have been chosen had the Supreme Court not been fully apprised of the cases to which I have referred above. I must therefore find, as a likely fact, that the Supreme Court considered that, absent any other valid reason, in the ordinary course of events, a party who appears in person is entitled to have in Court, a so-called “McKenzie friend.”

32. From the title to the proceedings in the Quinn case, it seems highly unlikely that it was a case in which there were any statutory prohibitions of the type found in the Domestic Violence Act 1996, and I have to assume that the Supreme Court had not been asked to consider the position which arises when any such statutory prohibition does appear.

33. I am satisfied that insofar as this jurisdiction is concerned, all other things being equal and in relation to matters other than the matters of a matrimonial nature or of a nature which the law prescribes should be heard in camera, the Supreme Court is satisfied and has decreed that a party who prosecutes proceedings in person is entitled to be accompanied in Court by a friend who may take notes on his behalf and quietly make suggestions and assist him generally during the hearing, but who may not act as advocate.

34. Having regard to the foregoing, it seems to me that I have to decide whether, in cases of a matrimonial nature, the guidance to be found in the Order of the Supreme Court should automatically apply. I take the view that it should not. In the first place, I think it likely that the Supreme Court was not asked to consider the matter in the context of any specific prohibitory legislation. Secondly, it is the case that in matters of a matrimonial nature, the legislature has decreed that such cases will be dealt with in a particular manner. The provisions of Section 16 of the Act of 1986 are deemed to be wholly constitutional, and no suggestion has been made that the section suffers from any frailty, even having regard to the provisions of the Constitution.

35. The public policy behind particular provisions of legislation which restrict access to courts in matrimonial and guardianship cases is readily understood, and obvious. It does not concern itself only with embarrassment to the parties, but is intended to protect the identity of the parties to the proceedings, their offspring, close family members or others and to avoid insofar as it is possible the publicity which might otherwise attach to the unnecessary disclosure of intimate or personal matters arising between affected parties.

36. But the desirability of protecting such matters is also well established at common law. In the United Kingdom, in all of the cases to which reference has been made, and in particular in Regina v. Leicester County Council , supra, there is a solid and continuing recognition of the fact that the entitlement to have a friend in Court when the proceedings are ones heard in camera, is restricted. In that case the Master of the Rolls, Donaldson, it was stated:-

37. When one comes to the judgment of Staughton, L.J. in the same case which supported the findings of the Master of the Rolls, Donaldson, (but on different grounds), he stated:

38. It is clear therefore that Mr. Daly cannot rely, simpliciter, on the decisions in the United Kingdom, because it is clearly recognised that there is not an automatic entitlement to have a so called "McKenzie friend" in circumstances where the hearing is in camera. Indeed Master of the Rolls, Donaldson, made it quite clear that in such circumstances there could be no right, whereas in the judgment of Staughton, L.J., he took the view that there was no right, but a discretion in the Judge, and the Judge ought to exercise his discretion in a particular way.

39. Having regard to the foregoing, it seems to me that the real issue to be decided is whether or not in the interests of the administration of justice, the prohibition appearing in Section 16 of the Domestic Violence Act, which requires that the hearing be “otherwise than in public” in other words “in camera”, ought to be overridden in circumstances where a party who is appearing in person, seeks to have the benefit of a so called “McKenzie" friend.

40. I would be reluctant to find that the long standing view of the legislature that all matters of a matrimonial nature, including Barring Orders or any other relief sought under the Domestic Violence Act, 1996, are to be heard otherwise than in public, ought to be set aside or modified in favour of the attendance in Court of a member of the public, as a “McKenzie friend”, unless there were overwhelming evidence that a fair hearing could not be secured by the Applicant, the Applicant having a Constitutional right to such a hearing.

41. It seems to me having regard to the view which the Respondent took, namely that:-

42. In the circumstances I refuse the relief sought by the Applicant.