In February 2016, the Lord Chief Justice and the Judicial Executive Board issued a consultation entitled “Reforming the courts’ approach to McKenzie Friends”. Three years later, during which the problems causing and resulting from the proliferation of unregulated fee-charging McKenzie Friend services have steadily got worse, they have responded with a series of recommendations that basically involve blaming the government for the problem and suggesting that the government, not the judiciary, should sort it out.

The reason why this is feeble is that the whole idea of McKenzie Friends was basically invented by judges (in a case called McKenzie v McKenzie [1971] P 33; [1970] 3 WLR 472, in the Court of Appeal), the judiciary are responsible for what McKenzie Friends are allowed to do in court and have given Practice Guidance on the matter, yet now they are saying the problem is someone else’s to deal with.

Traditionally, McKenzie Friends have been unqualified friends or volunteers who provide moral support for litigants in person and practical help with managing their cases. But in recent years, so-called “professional” McKenzie Friends have set up business, charging fees for their services, without any requirement to be qualified, insured or be regulated. In a number of cases McKenzie Friends have been criticised or found in contempt of court by reason of their misconduct. Clients paying fees to a McKenzie Friend may end up paying more than if they’d gone to a professional lawyer. Sometimes unpaid McKenzie Friends are motivated by an agenda that isn’t helpful to their client’s case. On the other hand, given the difficulties facing people representing themselves and the extra burden that places on the courts, the assistance of a McKenzie Friend may be very welcome to the court, and many do a good job.

It is also true that:-

  • the problems associated with McKenzie Friends have grown because of the notoriously drastic cuts in legal aid as a result of the government’s policy expressed in the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), causing many litigants to fight their cases without the benefit of legal advice and representation; and
  • the conduct of McKenzie Friends in offering legal advice and services outside court is not something the judiciary can manage and has been looked at by the Legal Services Board (LSB) which oversees the management of individual professional regulators.

So in that context what is needed is probably a combined or collaborative approach. But that is not what the judiciary have suggested. Their Consultation Response published this month lists a number of recommendations, based on the responses to the original 2016 consultation and their consideration by a subsequent judicial working group. Annexed to this (and taking up most of the document) is a summary of the responses to the original consultation, which came from members of the judiciary, legal professions, regulators, academics, charities and organisations (including The Transparency Project), as well as individuals and both individual and representative bodies of McKenzie Friends.

You can read the background to the process and links to other material in our post a year ago: Whatever happened to the judiciary’s McKenzie Friends consultation?

The recommendations

The judiciary’s recommendations are quite short, so we can set them out in full:

  • “The question of the reform of the courts’ approach to McKenzie Friends is one on which, as the consultation demonstrates, there are varying strongly held views. The growth in McKenzie Friends has coincided with the period following the enactment of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. The government has been reviewing the impact of the changes to the availability of legal aid. JEB conclude that the growth in reliance on McKenzie Friends, and particularly fee-charging ones, should be considered in the context of the impact of those changes. It is for the government to consider appropriate steps to be taken to enable LiPs to secure effective access to legal assistance, legal advice and, where necessary, representation.
  • The role of the judiciary is to apply the law concerning the provision of legal assistance, the light to conduct litigation and rights of audience according to the law established by the Legal Services Act 2007, the common law and precedent.
  • The JEB remain deeply concerned about the proliferation of McKenzie Friends who in effect provide professional services for reward when they are unqualified, unregulated, uninsured and not subject to the same professional obligations and duties, both to their clients and the courts, as are professional lawyers. The statutory scheme was fashioned to protect the consumers of legal services and the integrity of the legal system. JEB’s view is that all courts should apply the current law applicable to McKenzie Friends as established by Court of Appeal authority.
  • The Lord Chief Justice and JEB refer this consultation response and the annex summarising the views expressed in the consultation, to the Lord Chancellor.
  • Question 7 in the consultation paper concerns the provision of a Plain Language Guide for LiPs and McKenzie Friends. JEB support the view that a plain language guide could be produced by a non-judicial body for the assistance of LiPs. The judiciary continues to support the promotion of public legal education which would be aided by such a guide.
  • Finally, the Lord Chief Justice and JEB note that the current Practice Guidance on McKenzie Friends has not been revised or updated since it was issued in 2010. To ensure that it properly reflects the current case law, it should now be updated and re-issued.”

Further comments

The idea of plain language guide for LiPs and McKenzie Friends is a good one, which we supported at the time (while suggesting that, ideally, the rules of court should be more simply and clearly drafted in the first place). We note the judiciary’s reluctance to undertake this task themselves, in view of what they candidly admit was the “perceived inaccessibility” of the judicial handbook for LiPs. Given The Transparency Project’s track record in producing clear informative guidance for non-lawyers on this site, we would suggest being involved in writing such a thing and will be contacting the JEB accordingly.

The statement “The government has been reviewing the impact of the changes to the availability of legal aid” refers to the long delayed Post Implementation Review of Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (CP 37) which has only promised some minor tinkering with legal aid, and is unlikely to significantly reduce the need for litigants to represent themselves, especially in private law family cases.

The updating of the Practice Guidance is primarily a job for the Judiciary. The last one was issued by the Master of the Rolls (head of civil justice) and the President of the Family Division. The recommendations have shied away from the idea (mooted in the consultation) of incorporating something into the Rules of Court, probably rightly.

The “current law applicable to McKenzie Friends as established by Court of Appeal authority” is presumably a reference to the case of McKenzie v McKenzie itself, though it might also mean, or include, later Court of Appeal decisions such as R v Leicester City Justices, Ex parte Barrow [1991] 2 QB 260 and Clarkson v Gilbert [2000] 2 FLR 839, which are referred to in the responses — but all of which pre-date the Practice Guidance ([2010] 1 WLR 1881), and indeed the Legal Services Act 2007.

Finally, we note that some of the comments included in the consultation responses annexed to the judiciary’s response are based on inaccurate assumptions, which have not been pointed out or corrected. For example, the idea that practice guidance “can only be amended to take account of changes brought about by new case law” is nonsense. The suggestion that McKenzie Friends should have a right of audience in cases where domestic abuse is alleged, in order to prevent alleged victims being cross-examined by alleged perpetrators, is alarming to say the least. (In any case, the government has undertaken to address that problem in forthcoming legislation.)

Further reading:
McKenzie Friends: a litigant’s guide
Mckenzie Friends Consultation – The response of The Transparency Project

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