Why McKenzie friends should not be banned from court

Supportive role. Shutterstock

For those who find themselves going to court without a lawyer, another source of assistance is available. Known as “McKenzie friends”, they are traditionally not legally trained, but are able to provide informal support such as taking written notes and quietly making suggestions to the litigant in person. This is normally on a one-off basis – usually to someone they know personally.

Their existence dates back to the 1970 case of McKenzie v McKenzie in which the right to such a supporter was confirmed.

A small group of individuals also operate as “professional” McKenzie friends, charging a fee for their services, mostly in family law. This is in contrast to voluntary McKenzie friends who do not charge a fee for their support. Fee-charging McKenzie friends are not a new phenomenon, but they have become of increasing concern to the legal profession.

This concern has intensified since the withdrawal in 2013 of legal aid for many kinds of civil and family disputes in England and Wales. And understandably so. More people are now attempting to navigate the courts without the services of a lawyer.

But for many legal professionals, McKenzie friends are just another disruptive presence in the complex system of justice.

Anxiety about fee-charging McKenzie Friends is fuelled by the tendency of legal media outlets to focus on bad examples. Last year, for instance, a McKenzie friend was convicted of perverting the course of justice after submitting false expert reports to the court.

Then in June 2017, another McKenzie friend was found to have made substantial changes to a social worker’s report, and engaged in unpleasant, inappropriate and unwanted communications with the other party.

Predictably, the latter case was used as an opportunity to ask again whether fee-charging McKenzie friends ought simply to be “banned” from the courts. Such a proposal was effectively made last year by the Lord Chief Justice.

But reports of rogue McKenzie friends should not result in knee-jerk or disproportionate reactions. Our research shows that fee-charging McKenzie Friends only appear in a very small percentage of cases. Their rarity means that they are only a peripheral concern.

The evidence also shows that many fee-charging McKenzie friends are highly valued by litigants. They are affordable, flexible and show a strong commitment to client care – as well as being familiar with court processes and protocols.

Of course, steps should be taken within the legal world to reduce the risks posed. Being a McKenzie friend is an area of work that requires no qualifications or business set-up costs and is not subject to any external oversight. As such, it is wide open to abuse by unscrupulous individuals. It cannot be right that all the risk is borne by individual (often very vulnerable) litigants and by the justice system.

Fighting legal aid cuts. PA/Cooper

But more proportionate measures than a ban are available. Rights of audience (the right to address a court on behalf of a litigant) are a “reserved activity” under the Legal Services Act 2007, which means they can only be exercised by qualified and authorised individuals (solicitors and barristers) who are also regulated.

A friend in need

Amending court rules to allow rights of audience to be exercised only at the invitation of the judge, would put a more distinct boundary between the tasks McKenzie friends can do and the activities reserved for lawyers.

Of course, such a change would not address all the problems highlighted in the most recently reported case of a rogue McKenzie friend, in which much of his troubling behaviour occurred outside of court.

But this merely highlights another issue. Our research also found that most of the work done by fee-charging McKenzie friends does happen away from the courts. General legal advice is not a reserved, or regulated, activity. Perhaps there is a case for reviewing this and subjecting legal advice providers to some qualifying rules.

Much might also be achieved in other ways, such as clarifying and enforcing the rules around advertising of unregulated legal services – and attempting to ensure a more consistent approach to complaints handling and reporting customer satisfaction.

But in an environment in which litigants are increasingly unable to afford the services of qualified lawyers, it is essential to resist measures which could erode sources of affordable support.