In a long awaited consultation on the regulation of Mckenzie Friends, the Judiciary is proposing a ban on those charging fees.
A McKenzie Friend assists a person representing themselves in court. This person does not need to be legally qualified. The vision is that litigants in person are entitled to have assistance, professional or otherwise, unless there are exceptional circumstances.
The use of Mckenzie Friends has caused controversy over the years particularly with regards to those who charge fees. Mckenzie Friends are not qualified lawyers and operate without regulation and strict codes of conduct. Despite this, they often give advice to litigants in person on crucial decisions and complex legal arguments.
In response, the Judiciary has published a Consultation Paper summarising the current law and poses questions in a number of areas:
- Terminology - Should the term McKenzie Friend be updated to something that is more readily understood such as 'Court Supporter'.
- Developing rules of court - Should the existing Practice Guidance be replaced with formal rules of court. Codification would provide greater clarity and consistency in the approach courts take to McKenzie Friends.
- Providing notice – The paper suggests reforms to help litigants in person understand what roles McKenzie Friends can play and any limitations on what they can do. Litigants in person would need to inform courts in advance if they intended to use a McKenzie Friend, and would give the courts information on that lay supporter.
- Code of Conduct – The standard notice process could include a Code of Conduct for McKenzie Friends that they would be required to agree to comply with. This would ensure that, as with legal representatives, they would acknowledge a duty to the court, and a duty of confidentiality in relation to the litigation.
- Plain language – A plain language guide for both litigants in person and McKenzie Friends should be produced.
- Prohibition on fee recovery – The paper proposes that there should be a prohibition the recovery of fees by paid McKenzie Friends.
Many in the legal profession see this as a welcome development that would increase protection to litigants in person and hold Mckenzie Friends to account in the same way as Solicitors, Barristers and Legal Executives.
Others have argued that a restriction on McKenzie Friends obscures the litigant in person’s right to proper administration of justice in conducting litigation how they see fit in consideration of their own personal circumstances.