It used to be that if you needed a lawyer but didn’t have the money to hire one, you could usually get support through legal aid. But since big cuts to the civil legal aid budget in April 2013, the number of people accessing free legal services has fallen dramatically as cases such as divorce, child contact and welfare benefits no longer qualify for legal aid.
Although it’s not clear how many people are now representing themselves in court as a result, a report by a group of MPs indicated that the numbers are significant and rising. Being a litigant in person can be a daunting process with a lot riding on the outcome.
Into the breach have stepped so-called McKenzie friends. These are people who are not qualified lawyers but are allowed to represent a party to civil proceedings if they have been given permission by the judge to do so. The term McKenzie dates back to a divorce case in 1970 in which the husband, Levine McKenzie, used the support of an Australian barrister who was not registered in the UK. While McKenzie friends are therefore not new to English courts, there is evidence of an increase in their use following the cuts to legal aid.
Today, there are two main types of McKenzie friends: those that are free and those that charge fees. Free McKenzie friends include a number of university law schools and charities who provide assistance to litigants in person.
Fee-paying McKenzie friends are more controversial. They are not regulated and not required to have professional indemnity insurance, which means that clients cannot be sure they will be compensated if bad advice loses their case. Free McKenzie friends are not formally regulated either, but they typically do not offer legal advice, confining themselves to assisting clients with tasks such as note-taking, putting documents into chronological order or providing emotional support. Usually they are also insured.
By contrast, fee-paying McKenzie friends will often engage in advocacy on behalf of clients as well as offer detailed legal advice. Sometimes their fees can be high with reports of some charging £100 per hour for their services. This does not offer any saving as it would be possible to employ a junior qualified lawyer for a similar amount.
There have also been concerns expressed over the behaviour of some McKenzie friends. In mid-September, one was accused (by the opposite party) of hijacking the case to pursue his own agenda while acting on behalf of a boatowner. While the judge ultimately allowed him to act on behalf of the claimant, the complaint reflects one of the fears relating to McKenzie friends: that they will be used by pressure groups to advance their own agendas.
This follows other cases where distinctly undignified courtroom behaviour has taken place. For example, in 2015 a McKenzie friend who had served prison sentences for dishonesty and public order offences was banned from representing anyone for life after insulting an opponent and for other bad behaviour.
In response to incidents like this the judiciary have consulted on a ban on fee-paying McKenzie friends. The Law Society and the Bar Council have supported the idea. Yet some regulators, such as the Legal Services Board and the Solicitors Regulation Authority, are opposed, saying there is not enough evidence for a ban.
Not all fee-paying McKenzie friends engage in such egregious behaviour. Some have had experience in related disciplines like social work, and provide useful complementary perspectives to courts. Others are paralegals who are not legal professionals but have legal qualifications. There are also reports of solicitors becoming fee-paying McKenzie friends in order to avoid regulatory costs, enabling them to provide assistance at a more affordable cost to clients. There are also attempts at voluntary self regulation. For example, the Society for Professional McKenzie Friends requires its members to carry professional indemnity insurance.
Making justice more accessible
When even middle-income people are struggling to afford legal services it is clear that there is a huge issue about access to justice. Changes in business and regulatory practice – such as solicitors charging fixed fees, charging for specific tasks instead of conducting the entire case a practice known as “unbundling” and use of online courts and telephone hearings – may alleviate the problem caused by regulatory burdens which make legal services expensive. But, professional indemnity insurance, which solicitors are required to have, is a gold-plated service which comes at a price: it offers effective consumer protection but increases the cost of services.
The term McKenzie friend is not informative to consumers. It is also confusing as it suggests they are part of the court system, which they are not. A “court assistant” might be a more informative title, though it would mean they are part of the court system. This would give greater clarity to their role, but if they were part of the system they would need to adhere to a disciplinary code that would need to specify the tasks they could undertake – and would require insurance. To some extent, formalising them like this would mean a trade-off between enhanced consumer protection and affordability.