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Does a McKenzie Friend have many real friends in the legal profession?

Date:21 OCT 2016
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With government statistics confirming that in 34% of private law disputes neither party has the benefit of legal representation from either a barrister or a solicitor it is perhaps of no surprise that more litigants are relying on a McKenzie Friend. 

The term McKenzie Friend derives from the case of McKenzie v McKenzie [1970] 3 WLR 472. It was a defended divorce case in which the husband sought to be assisted by his friend, a young Australian barrister who, whilst not qualified within the UK, was proposing to offer the husband support and some prompting on appropriate questions to ask the wife on a pro bono basis. The judge was less than impressed. The husband subsequently appealed. The Court of Appeal upheld the appeal confirming that every party had the right to have a friend present in court to provide a form of support. 

As such a McKenzie friend is somebody who accompanies a litigant in person to a court hearing for the purpose of assisting him in such matters as taking notes, providing moral support, helping to organise the documents and on occasions whispering advice to the litigant. He or she is not an advocate and has no formal right of audience. A McKenzie Friend, and here is the real rub, works under no compulsory code of practice, is unregulated, does not have professional indemnity insurance and is rarely legally qualified. 

It is perhaps helpful to remind ourselves of the Practice Guidance: McKenzie Friends (Civil and Family Courts) issued in July 2010 by the Master of the Rolls and the President of the Family Division. It confirms that the role of a McKenzie Friend is not to:
  • act as the litigant’s agent in relation to the proceedings; 
  • manage litigant’s cases outside court, for example by signing court documents; or 
  • address the court, make oral submissions or examine witnesses. 
Whilst the litigant ordinarily has the right to receive reasonable assistance from a McKenzie Friend, the court retains the power to grant or refuse such assistance after being satisfied that it is in the interest of justice and fairness that such assistance is required (or not as the case may be). 

It is for the litigant to tell the court that they require such assistance and the proposed McKenzie Friend should produce a short CV or other statement setting out relevant experience (I should point out because I have seen it in a CV recently, that this does not need to reference a swimming certificate, as impressive as this may be) and confirming that they have no interest in the case, understand their role and the duty of confidentiality. 

Where there is an objection to the presence or assistance of a McKenzie Friend it is for the court or the objecting party to provide sufficient reasons why the litigant should not receive such assistance. This would then engage the right to a fair trial. The litigant should be given a reasonable opportunity to argue their point and the McKenzie Friend should normally be able to assist and support the litigant in that argument. But it remains the case that it is for the litigant to make the argument.

The simple fact is that McKenzie Friends do not have a right of audience or a right to conduct litigation. It remains a criminal offence to exercise rights of audience or to conduct litigation unless properly qualified and authorised to so by an appropriate regulatory body, or the court grants such authority which would be purely on a case-by-case basis. 

The Practice Guidance reminds us that courts should be slow to grant any application from a litigant for a right of audience or a right to conduct litigation to a McKenzie Friend. It is after all solicitors, barristers and legal executives who are properly trained, have obtained professional qualifications, have professional indemnity insurance and have an overriding duty to the court. 

Where the McKenzie Friend seeks a right of audience it is for the litigant, not the McKenzie Friend to persuade the court that in the interest of justice they should be granted rights of audience. The grant of a right of audience or indeed a right to conduct litigation will only be granted in exceptional circumstances, for all of the obvious reasons set out above. Interestingly you might think that if the litigant can successfully make such an argument he probably does not require the McKenzie Friend to speak on his behalf in any event. It is also worth remembering that rights of audience and the right to conduct litigation are separate rights, which would need to be applied for both individually and justified separately. 

What has also caused much consternation over recent years has been the fact that many McKenzie Friends are also charging for their services. Litigants can enter into lawful agreements to pay fees for McKenzie Friends (despite the fact that the industry remains unregulated) for their assistance at court, this can include preparation, clerical duties, photocopying and indeed the provision of legal advice in connection with court proceedings. Such fees cannot, however, be claimed against the other party. 

A party is, however, at risk of meeting the Mckenzie Friend’s costs where such costs have been incurred after the grant of a right of audience. In principle they are then a recoverable disbursement under CPR 48.6(2) and 48(6)(3)(ii). 

With more and more McKenzie Friends appearing on behalf of the litigants it is vital that advocates and indeed the courts, are familiar with this Practice Guidance. This is particularly the case where the actions of McKenzie Friends are coming under increased scrutiny. 

Last week a paid McKenzie Friend, David Bright, was jailed and sentenced to 12 months in prison for perverting the course of justice in a family court case. Mr Bright submitted a psychological report during the proceedings, which had in fact been prepared by his colleague and partner Miss Mann, who falsely claimed to be a clinical psychologist. This bogus report caused enormous distress. Not only did this cause one of the parents both financial difficulties but he also lost contact with his children as a result. 

This type of behaviour is deeply concerning. It would however be completely unfair to label all McKenzie Friends with the same brush. Many offer invaluable time and assistance to litigants. The problem seems to be the issue of McKenzie Friends being able to charge a fee. This implies, in my view, that they are something which they are not. They are attending court to offer support and comfort. They remain non-professionals. They are not lawyers. Whilst they continue to be able to charge fees, I wonder whose friends they actually are.

See also a forthcoming article by Jason Hadden, 'Allegations of bias' in November Family Law.
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