Anyone who is mentally competent is entitled to represent themselves in court (they do not need to employ a solicitor or barrister). If they choose to do this they are termed a Litigant in Person (LiP).
A LiP may be accompanied by someone to help them and this person is called a McKenzie Friend, named after the case which established the principles in 1970. This is not an automatic right, but a judge would only refuse to allow a LiP to have the help of a McKenzie Friend for a good reason.
More and more people are conducting their own cases in court, without a solicitor or barrister, often because they cannot afford lawyers’ fees, and Legal Aid to pay these fees is becoming harder to obtain.
Representing yourself in court is not as daunting as it may sound, especially if you have the help of a McKenzie Friend to assist in preparing the case beforehand and to sit along-side you in court.
How can a McKenzie Friend help?
What a McKenzie Friend May Do:
• Provide moral support for the LiP
• Take notes
• Help with case papers
• Quietly give advice on:
– points of law or procedure
– issues that the litigant may wish to raise in court
– questions the litigant may wish to ask witnesses.
What a McKenzie Friend May Not Do
• A McKenzie Friend has no right to act on behalf of a LiP in fast and multi track cases. They may not act as the LiP’s agent in relation to the proceedings nor manage the case outside court, for example, by signing court documents.
• A McKenzie Friend is not entitled to address the court, nor examine any witnesses. However, in exceptional circumstances, a judge may grant a McKenzie Friend what is termed ‘right of audience’ in a particular case. The McKenzie Friend would then be allowed to address the court and conduct the litigant’s case for the LiP, as a solicitor or barrister would normally do.
The new trade association for McKenzie friends will insist that its members are insured and meet minimum standards of qualification and experience within two months, its president has told the Gazette.
The Society of Professional McKenzie Friends was formed earlier this year after the Legal Services Consumer Panel asked for greater self-regulation in the business.
The group society has meets and vows that membership will be dependent on Professional discretionary benefits scheme Insurance (PII) and qualification at A-level or above in law or three years-plus experience as a McKenzie Friend.
Ray Barry chair of the society’s board, said the new mandatory elements will “inspire consumers and give them confidence”.
“Any Tom, Dick or Harry can be doing this,” he said. “The ordinary man doesn’t know who he is trusting these matters to. I am 100% behind [accreditation] – consumers need to know who they are dealing with and that somebody is doing checks.”
Barry, who previously worked for Jobcentre Plus and campaigned for Fathers4Justice, runs a company called Court Without a Lawyer. He said around half of the estimated 50 professional McKenzie friends in the country are members of the society.
He added that most members, including himself, already have PII and one broker has offered a discount on insurance to people willing to join.
The group hopes that through more self-regulation, the courts will be more willing to grant rights of audience.
Barry said judges have been careful to restrict the involvement of McKenzie friends in court proceedings in recent years due to complaints from the legal profession.
“The simple fact is that often a McKenzie friend is the only person with any kind of professional competence to attend the court,” he added. “Judges should use that expertise. I would accept we have not got the level of training a qualified solicitor has. In the grand scheme of things a McKenzie friend will often not be as good. But I would point to the fact there needs to be some consumer choice here.”
Barry explained that McKenzie friends are simply an extension of the unbundling of work many firms are addressing, enabling litigants to decide how much their representative does for them.
“Solicitors are too expensive for many people. [Those] who can’t afford solicitors should have the option of a cheaper alternative,” he said. “Part of that is driven by the costs of regulation and I have a lot of sympathy for solicitors but you have to look at the reality. The market has changed and people have to adapt.”
A Law Society spokesperson said: “It is an interesting development, but we would ask how far this will prove effective in protecting the public interest. Membership will not be compulsory and we question whether the organisation will have the resources or expertise to deal with the worrying issues around paid McKenzie friends.“
Last modified: November 5, 2018