Saral a/p Kerussnan v 1. ) Hospital Pantai Indah Sdn Bhd (WA-22NCvC-574-10/2022)

The plaintiff filed an application to permit an individual to act as a McKenzie friend [McKenzie v McKenzie (1971) P. 33 & (1970)] 3 All ER 1034] in a trial scheduled to start in January 2024. The application is filed under Order 92 rule 4 of the Rules of Court 2012 and under the inherent jurisdiction of the Court.

This application is rather novel. All four [4] counsel told me there are no reported Malaysian Courts’ decisions on a McKenzie friend.

I had agreed with the plaintiff and allowed her application on 20-11- 2023 with costs of RM 500 each from each defendant subject to allocatur.

These are my Grounds of Judgment.

A McKenzie friend is a person who has been granted permission by a court to attend as a friend of a party to a court hearing. He may take notes, may quietly make suggestions, and give advice; but he cannot take part in the proceedings as an advocate. [See Regina v Bow County Court, Ex parte Pelling, [1999] 1 WLR 1807 CA]

The term “McKenzie Friend” is derived from a case decided by the English Court of Appeal in McKenzie v McKenzie [1970] 3 All ER

[7] In McKenzie, the English Court of Appeal affirmed the Court’s acceptance of a McKenzie friend in terms first propounded in Collier v Hicks (1831) 2 B. & Ad. 663 where Lord Tenterden C.J. in that case said, at page 669: “Any person, whether he be a professional man or not, may attend as a friend of either party, may take notes, may quietly make suggestions, and give advice; but no one can demand to take part in the proceedings as an advocate, contrary to the regulations of the court as settled by the discretion of the justices.” [See Regina v Bow County Court, Ex parte Pelling, [1999] 1 WLR 1807 at 1821 CA] [8] Subsequently, in Regina v Bow County Court, Ex parte Pelling, [1999] 1 WLR 1807 the English Court of Appeal summarised the principles via Lord Woolf M.R. who said at page 1827 D - We would therefore summarise our conclusions by saying as follows: a. In relation to proceedings in public, a litigant in person should be allowed to have the assistance of a McKenzie friend unless the judge is satisfied that fairness and the interests of justice do not require a litigant in person to have the assistance of a McKenzie friend. b. The position is the same where the proceedings are in chambers unless the proceedings are in private. c. Where the proceedings are in private then the nature of the proceedings which make it appropriate for them to be heard in private may make it undesirable in the interests of justice for a McKenzie friend to assist. d. A judge should give reasons for refusing to allow a litigant in person the assistance of a McKenzie friend. e. The assistance of a McKenzie friend is available for the benefit of the litigant in person and whether or not a McKenzie friend is paid or unpaid for his services he has no right to provide those services; the court is solely concerned with the interests of the litigant in person. Singapore Courts’ decisions [9] The concept of a McKenzie friend has also been accepted by the Singapore courts in the case of Wee Soon Kim Anthony v UBS AG [2003] 1 SLR 833, the High Court of Singapore and in Haron Mundir v Singapore Amateur Athletic Association [1991] MLJU 21, GP Selvam JC. [10] In Wee Soon Kim Anthony v UBS AG [2003] 1 SLR 833, Kan Ting Chiu J at the High Court of Singapore reviewed the English cases I have mentioned above and expressed his agreement with the views expressed therein. He further said- “[18] A McKenzie friend who takes his responsibilities seriously is a help not only to the litigant who seeks his assistance, but also to the court. He should be permitted to stay. On the other hand, one who abuses the privilege by disregarding the directions of the court, who pursues an agenda beyond helping the litigant, or who uses the privilege as a back door to a legal practice he is not qualified for, should not be allowed to carry on.” [Emphasis added] [11] In Haron Mundir v Singapore Amateur Athletic Association [1991] MLJU 21, GP Selvam JC sitting at the High Court of Singapore mentioned about the doctrine in passing as follows - “The plaintiff appeared before the disciplinary committee on 11 June 1989 without a legal Counsel or a McKenzie friend to represent or assist him.” [Emphasis added] [12] I would, however, caveat that a McKenzie friend cannot represent a party in a proceeding unless permitted by the rules applicable to the said proceeding. Malaysian Courts’ decisions [13] Counsel have informed me there are no decisions by our courts on the applicability of a McKenzie friend to assist a party to a court litigation in court. [14] Counsel for the defendants contend the courts here should not adopt the McKenzie friend concept. [15] I don’t see any cogent reasons why we should not adopt the McKenzie friend concept in Malaysia. A litigant in person who is not eligible for legal aid and at the same time unable to afford to engage counsel should be allowed to use a McKenzie friend. A McKenzie friend who takes his responsibilities seriously is a help not only to the litigant who seeks his assistance, but also to the court. Rules of Court can be arcane to a layman. It will surely expedite the progress of a case and ensure a just and correct decision is reached by a court when a layman litigant is ably assisted by a McKenzie friend. Application of law to the facts of the case [16] The plaintiff has in her Affidavit in Support stated her need for the help of a McKenzie friend. Amongst others, the plaintiff says her finance has been depleted by virtue of the attrition involved in pursuing this action and the plaintiff has not been able to engage in any gainful occupation due to her physical disability. She sought the intended McKenzie friend to guide her on the rules and procedures in conducting the trial. [17] The plaintiff has presented valid reasons to support her application. I will allow the application.

[18] The application is allowed with costs of RM 500 each from each defendant to be paid to the plaintiff subject to allocatur. …………(signed)………… Leong Wai Hong Judicial Commissioner High Court of Malaya Kuala Lumpur (NCVC 10) Dated: 19th December 2023 COUNSEL: 1) Saral A/P Kerussnan representing herself for plaintiff. 2) Aw Ee Va for 1st defendant. (Chan Ban Eng & Co. (Penang)) 3) Thishondra Puspanathan and Raaswin Roshan Raj for 2nd defendant. (Raja Sekaran (Kuala Lumpur)) 4) Anit Kaur Randhawa for 3rd defendant. (Asbir Hira Singh & Co. (Kuala Lumpur)) CASES REFERRED TO: 1) Collier v Hicks (1831) 2 B. & Ad. 663. 2) Haron Mundir v Singapore Amateur Athletic Association [1991] MLJU

3) McKenzie v McKenzie (1971) P. 33 & (1970) 3 All ER 1034. 4) Regina v Bow County Court, Ex parte Pelling, [1999] 1 WLR 1807 CA. 5) Wee Soon Kim Anthony v UBS AG [2003] 1 SLR 833. LEGISLATION REFERRED TO: 1) Order 92 rule 4 of the Rules of Court 2012