With friends like these…

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 [1970] 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.

The role of McKenzie Friends

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 [2020] 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.

Recent cases

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;

• Wright v Troy Lucas & Co & Rusz [2019] 3 WLUK 375 - Mr Wright pursued a personal injury claim following an operation at Basildon & Thurrock University Hospital NHS Foundation in 2004. Mr Wright sought assistance from George Rusz (who was not a qualified lawyer) who ran a ‘litigation firm’ Troy Lucas. The Court ruled that Mr Rusz and Troy Lucas were professionally negligent in relation to a large number of failings in their work, including advancing a claim which was heedless of the evidence, causing a series of adverse costs orders to be made against Mr Wright, failing to make or respond to offers appropriately and failing to secure and retain the services of the appropriate expert. Whilst the defendant had not said he was a solicitor, he had held himself out to be an experienced ‘legal professional’ and the court found that is the standard to which he must be held. The Defendants were ordered to pay £263,759 in damages and over £70,000 in costs. This case made it clear that those who assist litigants who are unqualified (such as McKenzie Friends) and act outside the scope of their role, could be held liable for damages and costs.  
• Lincolnshire County Council v J.MCA 2018 IEHC 514 - An English couple took their child to Ireland in defiance of an interim care order, claiming a McKenzie Friend had said it was not forbidden for them to leave England and Wales with the child. The Court ruled there had been a wrongful removal of the child. Although the McKenzie Friend was not explicitly criticised in the judgment, it is clear the McKenzie Friend provided incorrect advice and highlights the danger of relying on unqualified advisors. 

Reform

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.

Practical tips

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;

1. Send the litigant a copy of the Judicial Guidance on McKenzie Friends in Civil and Family Courts so there is no confusion as to what a McKenzie Friend can or cannot do and what is required of them.
2. Strongly recommend the litigant seeks legal advice and remind them free legal advice is available from the Litigants in Person Service, the Personal Support Unit and Citizens’ Advice Bureau
3. Do not allow a McKenzie Friend to act outside the scope of their role. Only correspond directly with the litigant. If the McKenzie Friend requests that all correspondence should be sent to them, explain why you cannot agree to this and refer them to the Judicial Guidance.