EU Settlement Scheme Deadline: What are your responsibilities to your...
Jun 10 2021
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Over the last 15 years there has been a growth in the number of individuals acting in civil proceedings as litigants in person. This has prompted a rise in the number of litigants relying on McKenzie Friends to assist them with the legal process.
McKenzie v McKenzie  3 WLR 472 CA confirmed that litigants have a right to receive lay assistance in the course of representing themselves. Historically, McKenzie Friends provided informal support on a one-off basis, usually to someone known personally to them. However, in recent years, a new class of fee-charging McKenzie Friend has emerged. A 2017 report from the University of Bristol found hourly rates typically ranged from £15 to £90 per hour with a day rate ranging from £150 to £250. This has provoked concern within the legal profession.
McKenzie Friends can provide moral support, take notes, help with case papers and quietly give advice on any aspect of the conduct of the case. However, they have no right to act as the litigants’ agent in relation to the proceedings, manage litigants’ cases outside court (for example by signing court documents) and importantly, cannot address the court, make oral submissions or examine witnesses.
If a litigant would like their McKenzie Friend to be granted a right of audience, an application must be made. However, the courts are taking a cautious approach. In Ameyaw v McGoldrick & Ors  EWHC 1741 (QB), the Judge refused a McKenzie Friend permission to speak on behalf of a litigant, stressing the Claimant was well-educated and clearly able to speak on her own behalf.
It is important to acknowledge that the media will inevitably focus on examples where McKenzie Friends behave in problematic ways in the courts. Advocates for McKenzie Friends point to the fact that a large amount of work is done outside the court room and they provide much needed support. However, recent case law does highlight the dangers of relying on a McKenzie Friend;
In recent years, there has been growing concern amongst the legal profession that Mackenzie Friends who are without training, regulation and insurance could expose vulnerable litigants to disproportionate risk.
In February 2019, the Judicial Executive Board issued a consultation focussing on possible reforms to the industry and published the response in February 2019. This showed there was widespread support to the implementation of a Code of Conduct but the majority of respondents opposed a blanket prohibition on fee-paid McKenzie Friends. There was concern a blanket ban would adversely affect the likelihood of individuals or charities helping litigants-in-person and a reduction in skilled assistance would place litigants in a worse position. In addition, any blanket ban would be almost impossible to enforce.
Despite the initial consultation, progress has halted. However, in light of more recent case law the Court’s attention may be turning again to this rapidly expanding quasi-legal sector.
Dealing with litigants on the other side is often fraught with difficulty. This can frequently be made more complicated by the addition of a third party. Legal practitioners should consider the following;