30 October 2015Print This Post

Companies can be represented by McKenzie Friends, High Court decides

RCJ

Hildyard J: court has power “to regulate its own proceedings”

Companies can be represented in court by McKenzie Friends under rights of audience granted in exceptional circumstances, the High Court has decided.

Mr Justice Hildyard said that although “no authority has been found” on the issue, a court could rely on its power “to regulate its own proceedings and, in circumstances where otherwise the body corporate would have no-one capable of speaking for it, to prevent a failure in the administration of justice”.

Hildyard J said schedule 3 of the Legal Services Act 2007, “assumes and recognises” that the courts had such a jurisdiction, as did the Courts and Legal Services Act 1990, “even if it does not expressly confer it”

The judge was ruling on a dispute which he described as arising from the efforts, so far successful, by the Bank of St Petersburg to “wrest a large group of companies in the Russian Federation” known as the Oslo Marine Group from the control and ownership of the defendants.

Hildyard J said that after their previous solicitors, Withers, came off the record an application for disclosure was made by the defendants and “admirably argued on their behalf” by their McKenzie Friend Pavel Stroilov.

The defendants in the case were Vitaly Arkhangelsky, Julia Arkhangelskaya and Oslo Marine Group Ports (OMGP).

Ruling in Bank St Petersburg PJSC and another v Arkhangelsky and others [2015] EWHC 2997 (Ch), Hildyard J said counsel for the claimants had provided him with a helpful note on the “applicable framework” for McKenzie Friends.

“It suggests the conclusion that, given that CPR 39.6 does now allow an employee of a body corporate duly authorised to do so by it to appear at trial on its behalf with the permission of the court, the court does have jurisdiction to allow a body corporate the assistance of a McKenzie Friend, and in appropriate (and exceptional) circumstances to allow that McKenzie Friend a right of audience on an ad hoc basis.”

Hildyard J said the note had identified a case “where it appears that the court assumed that to be so”, namely Tracto Teknik GmbH v LKL International [2003] EWHC 1563 (Ch).

The judge said he agreed with counsel on the issue that the court “has such jurisdiction, as part of its power (in the absence of specific restriction) to regulate its own proceedings and, in circumstances where otherwise the body corporate would have no-one capable of speaking for it, to prevent a failure in the administration of justice”.

However, he added: “Nevertheless, it is for obvious reasons essential that the court should know with some particularity on what basis it is invited to give permission, and how and on what basis it is invited to hear the proposed representative.

“I shall consider submissions from the parties as to whether, in particular, the authority of the defendants to represent OMGP, and for that purpose to seek permission for Mr Stroilov to speak for them, has sufficiently been demonstrated.

“I shall also consider the scope of Mr Stroilov’s role, in light of the claimants’ recently expressed concerns in that context.”

By Nick Hilborne

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