McKenzie Friends in court: just beware the risks

Barrister Stephen Innes considers the potential pitfalls of being assisted in court by a “McKenzie Friend” and the advantages of instructing a barrister in most cases.

 

What is a McKenzie Friend?

If you are a litigant in person, you can do everything yourself from filing court document to arguing your own case in court. For most people, that is a daunting task, and a bit of help is always welcome. Hence, the advent of what are called “McKenzie Friends”. The name “McKenzie Friend” derives from a legal case from 1970 called McKenzie v McKenzie. This was a divorce case and because the husband was unable to afford to continue using solicitors, those solicitors, for free, sent someone (Mr Hangar) to represent him in court. Mr Hangar was not entitled to practise as a lawyer in England – in fact, he was a barrister qualified in Australia. The court refused to allow Mr Hangar to assist Mr McKenzie in court, and insisted upon him sitting only in the public gallery. When Mr McKenzie’s case went badly, he appealed to the Court of Appeal. The Court of Appeal held that the judge had been wrong: Mr McKenzie should have been permitted to have this assistance in court, and a re-trial was ordered.

The Court of Appeal had in mind a particular kind of assistance, not the sort of service which a solicitor advocate or barrister would normally provide at court. As the court ruled:

Mr Hangar was not there to take part in the proceedings in any sort of way. He was merely there to prompt and to make suggestions to the husband in the conduct of his case, the calling of his witnesses and, perhaps more importantly, on the very critical and difficult questions of fact in this case, to assist him by making suggestions as to the cross-examination of the wife and her witnesses.

In subsequent years, the practice of using a McKenzie Friend has become more widespread – especially, with the cutting back of legal aid. It has been several years since I have been in court for a case where a McKenzie Friend was present, but my experience certainly used to be that judges were fairly lenient about allowing them to go beyond their strict role and to conduct the advocacy. They took the view that the issue was not worth taking time arguing about, and that the McKenzie Friend might present the case with less disruption than the unprepared client himself or herself.

The practice of the courts has been governed since 2010 by Guidance issued by the Master of the Rolls and the President of the Family Division: Practice Guidance: McKenzie Friends (Civil and Family Courts). This specifies in relation to McKenzie Friends (“MFs”):    

What McKenzie Friends may do

MFs may: i) provide moral support for litigants; ii) take notes; iii) help with case papers; iv) quietly give advice on any aspect of the conduct of the case.

What McKenzie Friends may not do

MFs may not: i) act as the litigants’ agent in relation to the proceedings; ii) manage litigants’ cases outside court, for example by signing court documents; or iii) address the court, make oral submissions or examine witnesses.

The Guidance also provides that the Court may refuse to allow a party to be represented by a McKenzie Friend:

A litigant may be denied the assistance of a MF because its provision might undermine or has undermined the efficient administration of justice. Examples of circumstances where this might arise are: i) the assistance is being provided for an improper purpose; ii) the assistance is unreasonable in nature or degree; iii) the MF is subject to a civil proceedings order or a civil restraint order; iv) the MF is using the litigant as a puppet; v) the MF is directly or indirectly conducting the litigation; vi) the court is not satisfied that the MF fully understands the duty of confidentiality.

The Guidance emphasises that a McKenzie Friend does not have the right to conduct the litigation or, unless specifically granted by the court, rights of audience (the right to present the case orally in court):

MFs do not have a right of audience or a right to conduct litigation. It is a criminal offence to exercise rights of audience or to conduct litigation unless properly qualified and authorised to do so by an appropriate regulatory body or, in the case of an otherwise unqualified or unauthorised individual (i.e., a lay individual including a MF), the court grants such rights on a case-by-case basis. Courts should be slow to grant any application from a litigant for a right of audience or a right to conduct litigation to any lay person, including a MF. This is because a person exercising such rights must ordinarily be properly trained, be under professional discipline (including an obligation to insure against liability for negligence) and be subject to an overriding duty to the court. These requirements are necessary for the protection of all parties to litigation and are essential to the proper administration of justice.

 

McKenzie Friends in the news

I was prompted to write this article by the fact that McKenzie Friends have recently been in the news – well, the legal news at least.

First, a High Court Judge, Mrs Justice Asplin, was asked by the Lord Chief Justice and the Judicial Executive Board in 2016 to convene a working group to consider the noted increase in “Professional McKenzie Friends” who charge for their services, and to suggest possible reform to the 2010 Guidance. The working group produced recommendations, which were then used as the basis for a consultation. The recommendations, on which consultation was sought, included:

1. replacing the name “McKenzie Friend” with a more self-explanatory new term, such as “court supporter”;
2. introducing a standard form notice to be signed by the McKenzie Friend and the litigant in person, to provide information to the court about the McKenzie Friend; the form might include a Code of Conduct, which the McKenzie Friend would be required to agree to abide by;
3. prohibiting the recovery by McKenzie Friends of any fees or expenses.

An update in September 2017 noted that a large number of responses was received to the consultation, so that the Judicial Executive Board has decided to establish a further judicial working group to review the original proposals. I speculate that, in particular, the proposal to ban payment of McKenzie Friends will have generated strongly opposed views, given the differing interests involved.

Secondly, a number of instances of disgraceful conduct by McKenzie Friends have recently been reported, as follows:

• In 2015 a former nightclub bouncer, Mr Baggalay, was barred from acting as a McKenzie Friend indefinitely. Sir James Munby, president of the Family Division, commented that,

‘The court corridor is not the entrance to a nightclub, and those going about their lawful business in a court do not expect to be treated as if by a bouncer.’

• In 2016 another paid McKenzie friend, Mr Bright, was sentenced to prison for 12 months for perverting the course of justice in a family court. He had submitted an expert report which had been compiled by his partner, who falsely claimed to be a clinical psychologist.
• In August 2017 it was reported that Lord Justice Bean made an order banning a Dr Vaidya from bringing civil proceedings, after he had brought several “totally without merit” claims. Significantly, the judge added a provision to the order which also prohibited Dr Vaidya from acting as a McKenzie Friend.
• Finally, in another 2017 case, LFL v LSL (McKenzie Friends : breach of court orders) [2017] EWFC B62, a District Judge in Basingstoke published his reasons for excluding a McKenzie Friend from a hearing. He recorded that:

At the lunchtime adjournment, there was an outburst from her, during which she would not leave the court and threatened complaints against me, the solicitor for the wife and criminal sanctions against the wife. In consequence of her outburst, which was the last in a series of interruptions, I decided that her conduct disrupted the proceedings and I excluded her from the courtroom for the rest of the hearing.

I must emphasise that I am not suggesting that these awful cases are in any way typical, and I am sure that they will have been horrifying to all the other well-intentioned and hardworking McKenzie Friends, who should not be tarred with the same brush. Many litigants in person, otherwise facing court proceedings with considerable trepidation, justifiably say that they received assistance from a McKenzie Friend which they found to be invaluable.

It is also right to point out that instances of egregious misconduct by barristers do sometimes come to light, although given the size of the Bar, and the huge number of cases in which barristers act, these instances are vanishingly rare.

 

So why hire a McKenzie Friend?

If you instruct a barrister, whether through a solicitor or on a direct access basis:

1. you will be instructing someone who has a law degree or equivalent, has undertaken a vocational training course and has (unless he or she is still a pupil) completed a year’s specialist training pupillage;
2. apart from the very most junior, the barrister will have spent years in practice, building up specialist knowledge and experience of the substantive and procedural law;
3. all but the very newest practitioners will have completed additional advocacy and ethics training run by senior barristers;
4. the barrister is subject to a continuing professional development regime, requiring him or her to keep up to date with, in particular, developments in the law;
5. the barrister is subject to a professional Code of Conduct requiring him or her to act professionally, ethically and in your best interests;
6. in the unlikely event that something goes wrong:
   1. the barrister or his/her chambers will have a complaints procedure;
   2. subject to the rules of the scheme, you can seek redress via the Legal Ombudsman;
   3. you can report misconduct to the Bar Standards Board;
   4. a practising barrister is required to maintain professional indemnity insurance with a minimum level of cover of £500,000; this insurance is provided by the long established and highly reputable Bar Mutual Indemnity Fund.

Looking online, I can see that there are organisations offering the services of McKenzie Friends, subject to voluntary self-regulation and requiring their members to have been vetted, hold some qualifications, obtain insurance and comply with court rules and good practice. Those may be positive steps, but I cannot see that they come close to providing the level of comfort and protection afforded to consumers who instruct barristers, or indeed solicitors.

It is readily apparent that McKenzie Friends are offering legal advice and skilled services, such as drafting court documents and negotiating settlements. One often comes across people such as McKenzie Friends or serial litigants in person who have spent considerable time in court and so have picked up quite a bit of the legal language and terminology, as well as familiarity with some of the common procedures. They can seem very much at home in the court environment, and to a lay person they must look and sound the part. The problem is that the law can be complicated and sometimes, like Donald Rumsfeld, you don’t know what it is that you don’t know. Getting it 90% right is not good enough, because the 10% can make all the difference. It can very costly if something goes wrong. In short, I have witnessed in court many times the truth of the maxim that a little bit of knowledge can be a very dangerous thing.

It might be thought that hiring the services of a McKenzie Friend will be cheaper, but that certainly need not be the case. Looking online, it can be seen that there are McKenzie friends charging more than £50 plus VAT per hour. Depending on the requirements of your particular case, very junior barristers are likely to be available at extremely modest rates, close to or even below that of such McKenzie Friends. And crucially, whereas a McKenzie Friend (unless permitted by the court to speak) is only there to give you support and practical assistance in presenting your own case, a barrister can give you objective legal advice on your position and will conduct the hearing for you. 

Because of the scarce availability of legal aid, litigants will continue to use McKenzie Friends even if they come to be called something else, and whether or not a ban on payment is introduced. In many cases, that will work out fine for the litigants. But why take the chance, when you do not need to?

Stephen Innes @