In February 2016, the Lord Chief Justice, Lord Thomas of Cwmgiedd, and the Judicial Executive Board issued a consultation entitled “Reforming the courts’ approach to McKenzie Friends”.
The consultation set out a number of proposals which had been made by a working group, chaired by Mrs Justice Asplin, which had been asked to consider
- Whether the current practice guidance (issued by judges) should be replaced by rules of court (more formal, hard-and-fast rules).
- Whether so-called “professional” McKenzie friends should be allowed to charge for their services in helping people in court.
- Whether the name “McKenzie Friend” should be changed, and if so, what they should be called instead.
For a description and some basic advice about McKenzie Friends, see our earlier post – McKenzie Friends: a litigant’s guide.
The Transparency Project responded to this consultation on 8 June. You can read our response here.
Other responses to the consultation by various interested parties and organisations are listed below. We will add to this from time to time, building up what we hope will be a useful resource for anyone wanting to check or compare the responses.
Regulators and professional organisations
The Bar Council
Bar Council supports proposal to ban paid McKenzie Friends (press release: 25 Feb 2016)
The Bar Council represents the interests of barristers and is, unsurprisingly, not very welcoming to the idea of competition from professional McKenzie Friends, whatever they are called, even though they would still have no right of audience. In its initial press release, Chantal-Aimée Doerries QC, the current chair of the Council, said:
McKenzie friends are unregulated, uninsured and mostly unqualified, and the Bar Council agrees that they should not be allowed to charge people for legal services.
The Bar Council released its full response in the form of a PDF, entitled Bar Council response to the Reforming the courts’ approach to McKenzie consultation paper
The Bar Council has since announced that it has commissioned field research into the activities of “unregulated, untrained and uninsured McKenzie Friends in the family courts” following concerns that McKenzie Friends are charging unsuspecting members of the public (often vulnerable members of the public) for services in which they are not properly able to deliver. The research will be conducted by an independent team led by Dr Leanne Smith from Cardiff University.
The Law Society
McKenzie Friends are not legal professionals and should not be able to recover fees, says the Law Society (press release: 9 June 2016)
The Law Society represents the interests of solicitors and, like the Bar Council, is unsupportive of the idea of McKenzie Friends sharing its members’ patch. The press release announced that it backed proposals to “curtail the ability of McKenzie Friends to recover fees in the wake of a successful court action”. But that seems a narrow interpretation of what the consultation was actually proposing, which appears to cover any charging for services in relation to court appearances, not just the recovery of a fee on a no-win, no-fee basis as the press release implies.
Whilst accepting that there are different types of McKenzie Friend, Jonathan Smithers, president of the Law Society, made clear his organisation’s hostility to unregulated advisers:
Clients of fee-paid McKenzie Friends have no assurance of their legal knowledge, and are left with no redress if things go wrong. They are not necessarily cheaper than solicitors, who are highly regulated and deliver a high standard of quality service. Our members have witnessed the damage done by the unscrupulous, so we very much welcome any steps that bring clarity to the support that a McKenzie Friend can give.
For the Law Society’s full response, see Judicial Executive Board consultation on reforming the courts’ approach to McKenzie Friends – Law Society response (PDF download is at bottom of page)
The Bar Standards Board
Bar Standards Board (BSB) is the independent regulator of barristers in England and Wales. So its mission is to ensure that barristers are at all times fully qualified, competent and compliant with the standards and ethics of their vocation. Not surprisingly, the board is concerned about the role of unqualified and potentially incompetent so-called professionals competing in the same market, even allowing for the needs of rapidly growing numbers of litigants in person and the “unmet need” that represents. The board supports the ban on McKenzie Friends charging fees for court work.
We acknowledge that McKenzie Friends can play a useful role in the legal system, but are concerned about the current lack of regulation and redress around people providing these services.
Interestingly, the board’s response concludes with a (perhaps realistic) offer to engage with not only the drafting of a code of conduct but the actual regulation of McKenzie Friends – for whom its preferred designation would be “Litigant’s Assistant”.
The Solicitors Regulation Authority
The Solicitors Regulation Authority (SRA) is the regulator of solicitors and law firms in England and Wales, overseeing education and training, licensing of individuals and firms to practice, and setting the standards of professional conduct. The authority’s response begins:
Whilst we do not regulate McKenzie Friends, our regulatory objectives mean we have an interest in a legal services market which promotes access to justice, protects consumers and is competitive.
The authority agrees with the proposals to rename McKenzie Friends “court supporters” and that the current practice guidance should be replaced by rules of court. In answer to a suggestion that rights of audience in family proceedings should be granted more leniently than in other civil proceedings, the authority says:
A miscarriage of justice in family proceedings is more likely to be incapable of remedy through financial redress. This makes a stronger case for some access to support for an impecunious litigant in person.
That implies a test (similar to that applied in commercial injunction cases) of adequacy of damages as a remedy, which presumably could apply in non-family cases as well.
Interestingly, the authority (unlike the Law Society whose members it regulates) comes out against a ban on McKenzies charging fees:
A blanket fee prohibition means litigants in person may not get access to support, even where there are no quality issues. For example, it would limit the ability of charities to charge a small amount to cover their costs. The fee prohibition would also be difficult to enforce and would be easy to circumvent.
The Legal Services Board
The Legal Services Board (LSB) is the regulators’ regulator, with a general supervisory oversight over the legal services industry. It has been at the forefront of calls to relax the restrictions on the operations of paid McKenzie Friends, whom it sees as helping to cope with “unmet need” in the legal services market.
The board published its response with a press release headed “Case not made for ban on fee charging McKenzie Friends” and its chief executive, Neil Buckley is quoted as saying:
We know from our 2016 individual legal needs survey that 64% of consumers with a legal problem do not seek independent assistance in dealing with it. In this context, any moves to restrict consumers’ choices should be targeted and based on evidence of detriment.
We do not believe that the consultation paper adequately explains why a ban is necessary, what harm the ban would address or what the consequences of the ban might be for consumers. In these circumstances we do not support this particular proposal.
The board, in its full response, makes a good point about the proposal to replace practice guidance with rules of court: this, it says, would fetter the discretion currently exercised by judges in deciding, on a case by case basis, whether to permit a McKenzie Friend to represent a litigant in court, or conduct their case, as well as supporting them in court.
In conclusion, the response says:
We believe that it is important to consider the wider systemic changes that the justice system is undergoing when deciding what role McKenzie Friends should play. This might be best achieved by considering this issue as part of, or in the light of, wider reviews such as the Civil Courts Structure Review. For example, it could be that changes to court processes could be another response to the increasing numbers of litigants in person.
Institute of Paralegals
The Institute of Paralegals is a not-for-profit professional body supporting and representing unregulated legal practitioners, paralegals employed in the regulated legal sector and paralegal and unregulated legal staff working in commerce, industry and the public and third (ie charitable and non-profit) sectors. Its members include McKenzie Friends. In its response it says:
we believe that all parties, particularly consumers and MKF practitioners themselves, would benefit if there were in place a recognised MKF training and accreditation programme providing core skills and standards.
Whilst welcoming the consultation, the institute feels it is too narrow, in that it fails to consider the role played by unregulated professionals outside the court process on which the Judicial Executive Board has focussed its attention.
We believe the focus on this consultation is too narrow. We think it would have benefited from a more holistic approach in which court hearings were seen as part of an ongoing process which begins before court action is initiated and continues after it has concluded.
It also contends that the distinction between regulated and unregulated “lawyers” is a false one:
Since the deregulation of the provision of legal services under the Legal Services Act 2007, the regulated sector has increasingly been mirrored by the fast-growing unregulated sector. Many legal practitioners in the unregulated sector consider themselves to be lawyers, albeit unregulated ones.
Not surprisingly, the institute opposes a ban on charging fees.
The Family Law Bar Association
The Family Law Bar Association’s response to the consultation says that
For understandable, but impermissible reasons, there is a temptation for some exceptionally busy family judges to dis-apply, or even ignore, the current guidance given in Practice Guidance (2010) as to when it is, or is not, permissible to allow LiPs to make use of a McKenzie Friend and as to what role a McKenzie Friend can play. On occasion, experience suggests that rights of audience are assumed, and/or too easily granted, on the basis that some level of representation (even though unqualified) is better than none at all.
The FLBA is concerned that this practice should not be permitted in the future.
They go on to say that
The FLBA believes that any change of name that gives the impression that the person is any form of professional e.g. Professional McKenzie Friend is to be strongly discouraged, as it gives a false impression to members of the public.
They support replacing the current Practice Guidance with clearly drafted and uniformly observed rules of court, saying that
This would protect LiPs and their supporters/friends/assistants from falling into error and would provide clarity both in terms of the court’s expectations of McKenzie Friends and their responsibilities and limitations.
On the distinction between family and civil proceedings they say
The FLBA does not see any justification for differentiation between the proper approach to be adopted in family proceedings and (other) civil proceedings. However, it needs to be clearly understood both by litigants and by McKenzie Friends that many hearings in the Family Court are conducted in private and are therefore subject to strict rules about confidentiality and publication of information.
Specific (i.e. separate) rules may be required in this regard e.g. a McKenzie Friend should be required to sign a declaration that he or she is aware of and understands such rules and acknowledges that he or she is expressly bound by them. These might sensibly be incorporated into the Family Procedure Rules 2010.
In particularly confidential or sensitive cases, it might, for example, be appropriate or even necessary for a CAFCASS officer to carry out police and/or safeguarding checks on any proposed McKenzie Friend to make sure he or she poses no risk to the litigation process and/or another litigant and/or the children.
Again, this organisation supports a ban on fee recovery by paid McKenzie friends, with the possible exception of travel expenses or photocopying costs (with prior court agreement).
Interestingly, they also say
The FLBA recognizes that some LiPs and also the judiciary are provided with much needed assistance by McKenzie Friends. However, extending rights of audience, and allowing McKenzie Friends who are unregulated, uninsured and usually unqualified, and in some cases highly remunerated will not increase the assistance McKenzie Friends can provide.
A provision similar to that at paragraph 23 Annex B (page 30 of consultation), should be inserted into any proposed rules/guidance. Consideration of whether a central database should be maintained by HMCT’s to enable courts properly to ‘police’ McKenzie Friends may help achieve many of the aims of the guidance and rules. However, it is important that any such database does not import or suggest any assumed guarantee of competence or ability (e.g. that XYZ is a ‘court endorsed’ McKenzie Friend).
In addition, it is suggested that any rules or court should specify that the court and other parties should be notified as soon as possible, and ideally in advance, if a party is going to
seek the assistance of a McKenzie Friend at any future hearing, so that the other parties can carry out any appropriate investigations in respect of the proposed McKenzie Friend.
A number of legal commentators have published their own responses to the consultation, or to the views of the various legal regulators, on the topic of McKenzie Friends.
Litigants in person: assistance and the courts (via the DB Family Law blog)
Burrows, a solicitor advocate and writer, draws attention to the unaffordability of justice in the current system, the vastly increased number of litigants denied legal aid, most of whom are not able to advise themselves, and the frustration experienced by judges and other court users when such litigants attempt to represent themselves. Unlike the earlier Report of The Judicial Working Group on Litigants in Person (Hickinbottom Report) in 2013, which looked primarily at the needs of litigants and the problems they faced, he feels the consultation on McKenzie Friends is “looking through the wrong end of the telescope”.
The Hickinbottom report looks through the correct end of the telescope: at what are the needs of the LiP in the civil and family justice system and how can these be dealt with in a way which is fair to all/both parties and to the court system. The McKenzie friend is but a part of this. The consultation report looks only at this aspect; and not from the point of view either of the LiP (who seeks the help, and may be prepared to pay) or from the point of view of the lay representative, who may be sued for what s/he does.
Some thoughts on reforming the courts’ approach to McKenzie Friends (via the Marilyn Stowe blog)
Bolch, a non-practising solicitor who comments regularly on family law, agrees with the idea of changing the name McKenzie Friend to something else, but doesn’t think much of Court Supporter as an alternative. He thinks a code of conduct might be a good idea, depending on what was in it. His real beef is with the idea of prohibiting the payment of fees, which would simply reduce still further the assistance available to those who would previously have been eligible for legal aid. He concludes:
Perhaps the retention of fees but with regulation and insurance would be a better way to go?
Whatever, I can’t leave this subject without repeating what I have said before: whilst there are some very good McKenzie Friends out there, the fact of the matter is that by withdrawing legal aid the government has left the poorest in society at the mercy of untrained, unregulated and uninsured legal advisers. Tinkering with the Guidance in the way the consultation suggests will not alter that basic fact.
In another post, Either lawyers are regulated, or they aren’t (this time on his Family Lore blog), Bolch argues that to allow unregulated paid McKenzie Friends to operate alongside regulated solicitors and barristers is effectively to provide a two-tier legal system in which the better off in society (who can afford professional lawyers) get the protection of regulation, training and insurance, while the worse off (who have to resort to unregulated, uninsured McKenzie Friends) do not.
That cannot be right: either the public requires protection or it doesn’t; either lawyers are all regulated, or they are not.
Lay advisers are the lawyers of the future – let’s support them (via Family Law journal online)
Phillips, a non-practising barrister who writes the Researching Reform blog, takes a largely uncritical view of McKenzie Friends, viewing them as being in essence just as good as proper, trained and qualified lawyers, within the scope of their activities, only cheaper, and therefore a welcome addition to the choice available to consumers who perhaps can’t afford to be too choosy:
Legal assistance in whatever form it takes is a cornerstone of our justice system and lay advice deserves to be viewed as a welcome addition of equal worth to conventional representation.
Peaker, a solicitor who tweets and blogs as Nearly Legal, specialises in housing law, and views with alarm the growth in that sector (ie not just in family law) of self-styled “lawyers” with no legal qualifications who nevertheless claim to be able to represent clients in court in cases involving rent arrears, repossession etc. As he points out:
There is no regulator, no ombudsman, no means of disputing fees and in most instances no insurance. The quality of advice may well be variable, but as these encounters show, many in the ‘legal services’ sector are not averse to misrepresenting their services and skills.
Goodbye Mr McKenzie! (via the My Mid-life Crisis blog)
The anonymous barrister who tweets and blogs as CrimBarrister takes a dim view of McKenzie Friends operating in the criminal courts, especially if they are being paid (often more than a solicitor or barrister):
To those outside the legal profession, this must seem totally insane. A completely unqualified person can be permitted to charge fees to operate in an arena in which they are not qualified? Replace the word ‘lawyer’ with the word ‘doctor’, ‘accountant’ or even ‘plumber’ and you begin to realise how bonkers the situation actually is.
Some McKenzie Friends themselves, or their representative organisations, have published responses to the consultation (and we suspect others will have responded to the consultation itself, particularly if they wish to combat the idea of a ban on charging fees). We will add their responses in this section as and when we learn of them.
Society of Professional McKenzie Friends
The SPMF describes itself as “a self-regulatory body” which established itself, in the absence of an official regulator, to protect consumers and courts. It vets its members “to ensure they are competent, insured, and comply with court rules and good practice”. It currently has 27 members, who can be found in a directory on its website, along with information about what they do and their code of conduct.
Its response to the consultation deals primarily with the proposed ban on the charging of fees by McKenzie Friends, which it opposes on grounds set out in the response. In essence:
This proposal would mean that Professional McKenzie Friends could no longer provide services
and large numbers of litigants, for whom legal aid is no longer available and who cannot
afford traditional practising solicitors or barristers, would have access to no legal advice.
It also puts forward a “workable counter-proposal”, including its own version of relevant civil procedure rules to enable the judiciary to recognise the society or some equivalent body and regard its members as providing better consumer protection than other, unregulated, uninsured McKenzie Friends.
Our 27 members incur the cost of SPMF membership, of ICO registration and professional indemnity insurance, and yet find they are treated the same by courts as McKenzie Friends who do not incur those costs, and do not provide these protections to the consumer. We feel the ball is now in the court of the judiciary to provide professional McKenzie Friends with a solid reason to join SPMF, (or any similar Trade Association which might arise), and so ensure the protection of the vulnerable litigant which this consultation paper advocates.
The society subsequently published a Supplementary Response (dated 8/6/2016) which “addresses some developments since that date”, including the new research commissioned by the Bar Council (see above).
Family Advisory Bureau
Friend or foe (via the Family Advisory Bureau blog on their website)
Describing itself as “a McKenzie Friend legal assistance practice” the Family Advisory Bureau, which is owned and run by Nicola Ingram, aims to give people “access to sound legal advice from experienced and up to date advisers”. Having criticised the paucity of the evidence on which the consultation is based, Ingram argues that the ban on paid McKenzies fails to acknowledge that assisting clients in court is only a small part of what they do. She says:
Most of our time is spent dealing with the paperwork that Court proceedings generate. Nothing in the proposals from the Judges will change that. However, if the suggested changes go ahead we will not be able to be present when the Court considers those documents. Of course, it would be naive to suggest that all McKenzie Friends behave properly at all times and none of them ever claim an expertise that they do not in fact possess. Would not allowing such individuals to be in Court make McKenzie Friends more responsible and give the Judges greater control over them?
If you, or the organisation you work for, have published a response to the consultation, please let us know and it can be included in this resource.