Thursday, July 16th, 2020
What is a McKenzie Friend?
It is a fundamental principle in this jurisdiction that parties involved in litigation have the option to represent themselves. These litigants in person are entitled to advice or assistance (other than in exceptional circumstances). A McKenzie Friend can best be described as an unqualified volunteer who accompanies a litigant in person to court to support and assist them with the process. They can be of great benefit in dealing with often difficult and emotionally charged court proceedings.
The term ‘McKenzie Friend’ derives from the appeal of divorce proceedings in McKenzie v McKenzie  in which it was held that a judge had erred in refusing to permit Mr McKenzie to be accompanied in court by his friend. In this particular case, a barrister, who was qualified in Australian but not English law, attempted to assist Mr McKenzie at a court hearing. The judge would not allow the barrister to take any active part in the case. Hence Mr Mckenzie appealed to the Court of Appeal; it was decided that Mr Mckenzie had been denied representation to which he was entitled, and a retrial was ordered. Jeffrey Gordon (a previous solicitor at Hanne & Co.) was involved in the case, in which the concept of ‘McKenzie Friends’ was born.
What can and can’t a McKenzie Friend do?
McKenzie Friends can play a useful role in providing moral and/or practical support to litigants in person. That being said, it must be noted that their input is limited. Lord Tenterden CJ (in his judgment in Collier v Hicks ) seemed to back the presence of a friend in court, by commenting that ‘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 …’.
While McKenzie Friends cannot represent a party in court or sign court documents on their behalf, they are permitted to sit with a party in the court and offer advice and support, organise documents, take notes and give basic prompts on points to make or court procedure. They are not necessarily legally qualified, and their role is more restricted than that of a solicitor or barrister. The SRA is clear that non-solicitors can be prosecuted for so-called ‘holding out offences’, which include false representations of being legally qualified or the undertaking of reserved legal activities. Guidance on the presence of McKenzie Friends in civil and family proceedings was published in July 2010 and usefully sets out what McKenzie Friends can and cannot do.
McKenzie Friends are unable to conduct litigation, file court documents and statements, and/or speak in court on behalf of a party, unless invited by the court to do so. In fact, it is an offence for a McKenzie Friend to address the court unless given specific permission by the judge and even then, they can only do so in exceptional circumstances. The 2010 Guidance reserves the right for the court to refuse to permit the assistance of a McKenzie Friend if it is in the overriding interests of justice and fairness. They are not permitted to manage a party’s case outside of court, or to send/received correspondence on a party’s behalf.
Help or Hindrance?
There is some controversy regarding the involvement of McKenzie Friends verses legal representation. Representation by a legally trained person (i.e. a solicitor or barrister) is still the preferred option for the majority involved in court proceedings, whereby they can rely on the experience and expertise of a qualified person to advise and represent them. The widespread view is that McKenzie Friends are, quite simply, no substitute for legal representation.
Nevertheless, legal representation is simply not an option for some people and considering the substantial cuts in Legal Aid in recent years, it is no surprise that there has been a dramatic rise in the number of litigants in person, and in turn, McKenzie Friends. Those who are denied Legal Aid can feel that access to justice is extremely restricted; the appointment of a formal aide can help alleviate that feeling of isolation or persecution.
Nonetheless, the reliance on McKenzie Friends can also pose a number of risks, which should be taken into consideration before the assistance of a McKenzie Friend is sought. These include:
1) Remuneration: Increasingly, McKenzie Friends charge for their time (commonly between £15 and £89 an hour), though few have any legal training or liability insurance, and there is no formal code of practice. This has caused controversy with professional bodies, who are frequently divided over whether fees should be permitted at all and if so, within what parameters. The judiciary, who are at the forefront in this sense, has proposed a ban on McKenzie Friends charging fees for their services. Meanwhile, other individuals and bodies (e.g. the SRA) believe a ban would be disproportionate to the current level of risk posed to litigants in person.
2) Unrealistic Expectations: Given the increase in the number of McKenzie Friends there has, inevitably, been a corresponding rise in litigants suffering adverse consequences due to being poorly advised by McKenzie Friends. Some people may seek the input of a McKenzie Friend if, for example, they have first consulted a lawyer but not liked or agreed with the options presented to them. The McKenzie Friend may then become a complicit ally of whatever point the client wishes to pursue, allowing the client to continue on this track, even if the course sought is not a favourable one, potentially leading to the client having unrealistic expectations.
3) Lack of Regulation: Unlike the Bar Standards Board for barristers and the SRA for solicitors, there is no official regulator for McKenzie Friends. This could expose litigants to exploitation, particularly where McKenzie Friends charge fees for their services and those consulting them are, by their very nature, unfamiliar with the legal process and in dire need of support. People may falsely believe that they are obtaining the input of cheap legal representation, but they are not. McKenzie Friends are usually uninsured, unregulated and possibly untrained. There are therefore significant risks of relying on the legal advice of a McKenzie Friend, particularly if the matter at hand is a complex one.
In conclusion, despite the obvious attractions that a McKenzie Friend offers to a litigant in person (i.e. providing practical and emotional support at a relatively modest expense), many are concerned the risks of involving McKenzie Friends are worryingly high for litigants who may become the victims of inexperienced and potentially unscrupulous persons. McKenzie Friends are invariably placed in a position of trust, yet they are officially unregulated. Litigants in person may engage their assistance without realising that they are often unqualified, and without a proper understanding of the legal process and its pitfalls. There is no doubt therefore that veering towards this type of quasi-legal assistance poses a burdensome and grave challenge for the courts today.
To speak to one of the Family & Divorce Law Team please contact us on 0207 228 0017 or firstname.lastname@example.org. We offer legal aid for those that are eligible or, if instructing us privately, we offer a fixed fee consultation for £250-£350 plus VAT (depending on the seniority of the solicitor).
Catherine Withers is a Solicitor in the Family & Divorce Law Team