If the enemy of my enemy is my friend, and by that logic, my friend’s enemy is my enemy, what does this have to do with McKenzie friends?
Pause before you conjure up and pretend to give some semblance of an intelligent answer, or nod with a knowing, deep, and meaningful expression on your face, hiding the reality that you have no idea, or care particularly.
The original McKenzie friend was Ian Hanger, (later made Queen’s Counsel, and now a mediator in Queensland, Australia) in the case of McKenzie v McKenzie [1970] 3 ALL ER 1034, CA. Mr McKenzie was legally aided, but then legal aid was withdrawn. He could not afford legal representation, but Mr Hanger was prepared to go to court as a professional friend of McKenzie: A McKenzie Friend, to sit behind him, suggest advice based on procedure and the law, and to assist generally. The Judge at first instance would not allow this on day one of the trial, and so on day two, there was little point in Mr Hangar being at court.
Mr McKenzie appealed the decision on the basis that he had been denied legal representation. The Court of Appeal agreed and the matter was re-tried.
Thus sprang the principle that a McKenzie friend is someone who can assist a litigant-in-person in court with paperwork, court procedure, and assistance generally.
The difference with Ian Hanger was that as an officer of the court, he had a duty to the court not to mislead, and not to misrepresent the facts. He was regulated by his professional body, albeit not the Courts of England and Wales, but rather, the Australian courts.
A number of cases have recently arisen where McKenzie friends have over-stepped what is expected of them. Indeed, there is a notional understanding of the role of a McKenzie friend, but nothing in stone. Assisting a litigant-in-person can be done in many ways, and the role is not clearly defined.
This blogpost does not seek to question whether a McKenzie friend still has a place in court. The writer believes overwhelmingly that McKenzie friends are a huge help not only to the courts but to the litigant-in-person employing them, and the process generally….PROVIDED THAT THEY ARE LICENSED AND REGULATED AND KNOW WHAT THEY ARE DOING, AND THAT THEIR ASSISTANCE PRESUMES THEY ARE CONVERSANT IN LEGAL PROCEDURE AND PRESENTATION.
Indeed, where legal aid is dwindling, and legal representation cannot be afforded, (and in some occasions, not trusted), and conditional fees are not working or not permitted, someone to assist in court is a big comfort.
There are of course a number of groups who provide assistance as to court preparation such as Help4Lips, Citizens’ Advice Bureau, LawWorks, and the Bar Pro Bono Unit.
There are other groups who will help emotionally and with practical advice, but not legal advice, such as the Personal Support Unit.
Going back to the main question, what duty does a McKenzie friend have to you, the litigant-in-person?
Does the McKenzie friend derive a benefit for money or money’s worth? Is there a written or implied agreement in place which establishes a contract? If yes, the relationship may be contractual. If so, bad or misleading advice could be negligent advice.
What if there is no contract but you rely upon the McKenzie friend as a skilled person with expert advice in the field of legal procedure? There may be a relationship established in Tort which gives rise to negligent advice.
Ok. So you may have a remedy for negligence in cotract or tort, and the McKenzie friend gives you the wrong advice which leads to a claim arising against the McKenzie friend: Not so much a friend anymore…
Is there a distinction between a McKenzie friend who charges a fee, and a McKenzie friend who charges no fee?
There is a growing surge of professional McKenzie friends who charge a fee.
Well, herein lies the problem. McKenzie friends are not regulated. Their duty to the court is not regulated by any professional body. They have no codes of conduct to adhere to. They do not carry any indemnity insurance to cover them for any negligent acts/omissions, or advice. Yet, they can appear to assist litigants-in-person, and at the discretion of the court they can speak on their behalf.
What do you get with a professional McKenzie friend, that you do not get with a solicitor?
It may be cheaper by way of an hourly or fixed rate, but what if things go wrong? A solicitor is regulated by the Solicitors’ Regulation Authority. A solicitor abides by codes of conduct, and has duties to the court as officers of the courts not to mislead or misrepresent a case. Duties of confidentiality to their client. A solicitor must have indemnity insurance. Costs and estimates must be regularly given and revised. Complaints procedures are ingrained into their terms and conditions. They are liable to you both in contract and in tort. Other regulatory breaches result in discipline, fines, and ultimately being struck off the roll of Solicitors.
A recent publication suggests that litigants in person should be given special treatment to a lawyer in court. That makes perfect sense. The profession of a litigant in person is not usually that of a lawyer. They do not know the rules and regulations and yet they are expected to know how to present an argument, and how to present paperwork.
The writer’s view is that a McKenzie friend, and especially a professional one, should be licensed. They should be regulated. There should be a code of conduct. There should be a separate qualification to obtain, which limits their assistance to procedure and presentation, rather than to provide legal advice. There ought to be a complaints procedure, and a disciplinary body. Only those fit to practice, honest, and of good character should be permitted to hold such a license.
I very much hope that such regulations and better judicial guidance will be forthcoming following the various consultations most notably the Legal Services Consumer Panel Report, Fee-charging McKenzie Friends (April 2014).
Regulation, education, and licenses are needed to ensure a good standard of McKenzie friend. Sociopaths, psychopaths, manipulators and con-artists, seeking to manipulate volatile and vulnerable litigants-in-person in stressful situations, some of which I have had the displeasure to come across when in Court, hiding behind the mask of a McKenzie Friend, need not apply. This should not extend to provision of legal advice. That is a regulated activity and if you wish to give legal advice, and advocate in court, then become a solicitor, a barrister, or a legal executive.
The McKenzie Friend’s enemy is not the court. It is not the litigant-in-person. It should not be a regulatory body, or lawyers on the opposing side. Indeed, the McKenzie friend should have no enemies. Provided they adopt the appropriate balance to assist both the courts and the litigant-in-person, McKenzie friends should be considered assets and not liabilities. (licensed and regulated ones conforming to a code of conduct and carrying indemnity insurance).
This blogpost is for information purposes and should not be relied upon as legal advice because it does not consider or take into account your own personal circumstances. If in doubt, seek legal advice.
Professor David Rosen is a solicitor-advocate, partner and head of litigation at Darlingtons Solicitors LLP. He is strategic legal advisor for diyLAW, a member of the Society of Legal Scholars amongst other memberships, and honorary professor of law at Brunel University where he regularly lectures on practical legal skills and procedure, and advocacy amongst other subjects.