Adam Johnson J: Exceptional circumstances
A High Court judge has allowed a McKenzie Friend to exercise rights of audience in supporting a defendant facing an order that could lead to a jail sentence for contempt being activated.
Mr Justice Adam Johnson said that, in light of the stakes, the defendant’s health also contributed to his decision.
The decision – given last month but only just published – follows an admitted fraud by Edward Wojakovski on the Tonstate Group, involving the “unauthorised extraction of company funds” totalling over £13m.
Ahead of a hearing to consider an order to disclose information about the whereabouts of the funds, the judge had to decide whether Michael Marx should be allowed to exercise rights of audience to speak on behalf of Mr Wojakovski.
The claimants did not object to him performing “the usual function of a McKenzie Friend” – which the judge described as “providing moral support, taking notes, helping with case papers and quietly giving advice on any aspect of the conduct of the case” – but did object to him speaking.
A 2010 practice note says the court should only grant rights of audience to a lay person in exceptional circumstances.
Johnson J said he was satisfied that such circumstances existed here for two reasons. First, another High Court judge found Mr Wojakovski in contempt of court last December and made a suspended prison sentence against him which requires his ongoing compliance with any further orders made by the court.
Johnson J said: “It follows that it is particularly important from Mr Wojakovski’s point of view that proper and detailed and fair consideration is given, both as to whether any further orders of any kind should be made against him, and as to the precise terms of any order.
“That may take us into technical areas of detail, and I need to be satisfied that the court has been provided with all relevant information that will enable it to consider Mr Wojakovski’s position with due care and treat him fairly, given the potential consequences for him of non-compliance.”
The second reason was his state of health. A third judge, Mrs Justice Falk, had concluded in July 2022 that, at that time, Mr Wojakovski had sufficient capacity. (He was legally represented then, Johnson J noted.)
But Falk J accepted that there was “some decline in cognitive function” and that he had been diagnosed with Parkinson’s disease, although it was well controlled.
Johnson J said: “It seems to me that, notwithstanding the overall conclusion reached by Falk J, there are matters here of sufficient concern to persuade me that, at least for the purposes of the present application and given the context I have described, including especially its importance to Mr Wojakovski, both he and the court would, exceptionally, be assisted by support from Mr Marx not only as a traditional McKenzie Friend, but also as someone who is able to speak on Mr Wojakovski’s behalf and interpret what he has to say for the benefit of the court.
“I also note that Mr Marx, as I understand it, has long been involved in providing support and assistance to Mr Wojakovski, and his experience and background it seems to me may be of some utility.”
The judge added that the claimants had expressed reservations about the reliability of Mr Marx.
“I am not able to express any conclusions about such matters. I think it is sufficient to say that, in light of the reservations expressed, I will of course approach submissions made by Mr Marx with all appropriate and due care.
“That seems to me a sufficient safeguard for the purposes of the present application.”
In his ruling on the substantive application, Johnson J said Mr Marx made a number of points, including in a “helpful and detailed skeleton argument… which it appeared had been put together with at least the benefit of some informal legal advice”.
The judge ultimately made the order, amending its terms a little in light of the argument made.
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