A McKenzie Friend is someone who accompanies a litigant in person to court proceedings, sits with them in court and offers advice and support as well as taking notes. There has recently been a consultation on their role in the litigation process.
The Judicial Executive Board (JEBs) response to the consultation has recommended that Practice Guidance needs to be updated and reissued so as to reflect the current situation. Since the original guidance was issued in 2010, the number of Litigants in Person (LiPs) and McKenzie Friends has increased, and there has also been an increase in ‘Professional McKenzie Friends’, who provide their services for a fee. The JEB response recognised that there are strong views on the role and remit of McKenzie Friends, and the courts’ approach to them.
The number of McKenzie Friends has increased since the enactment of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. With this in mind, the government has been studying the impact that changes in availability of Legal Aid have had. The JEB came to the conclusion that these increase in LiPs and McKenzie Friends was potentially a result of the reduced availability of Legal Aid, and so the growth in reliance on McKenzie Friends, and particularly fee-charging ones, needed to be looked at in that context. Now, the government will have to decide what needs to be done to make sure that litigants in person can access effective legal assistance, advice and, if needed, proper representation.
The JEB have said that the judiciary need to apply current laws regarding the provision of legal assistance, the right to conduct litigation and rights to appear in court on behalf of a client – according to laws put in place by the Legal Services Act 2007, common law and precedent.
Meanwhile, the JEB are worried about the increase in numbers of McKenzie Friends, and the fact that they are attempting to provide a professional service for reward when they are unqualified, unregulated and uninsured. McKenzie Friends are also not subject to the professional obligations and duties of legal professionals, either to their clients or the courts. The statutory scheme was created to protect consumers of legal services and the integrity of the legal system.
The JEB’s view is that all courts should apply the current law, and the JEB also agreed that a plain language guide could be produced to help LiPs. This would also help improve public knowledge and education about the law and legal process, which the JEB supports.
For the consultation response, click here.