Lucinda Connell, Family Law Specialist with Hexham and Northumberland’s leading Divorce and Family Law Specialists, Major Family Law states with the lack of availability of public funding, the use of ‘Mckenzie friends’ is on the increase, including those who charge fees for their services. On 17th April 2014, the Legal Services Consumer Panel (LSCP) published a report on their use in court with the report concluding the access to justice benefits of fee-charging McKenzie friends outweigh the risks. The study found a small number of individual cases where there was a serious impact on people, but there was no evidence of widespread detriment being caused.
So what exactly is a Mckenzie friend?
Traditionally, McKenzie friends have provided support to people representing themselves in Court – ‘litigants in person’. They can provide emotional and moral support, but are not allowed to speak, other than to the litigant directly, in the court room.
Often the McKenzie friend will be family member or friend. There is now though an increasing trend for paid Mckenzie friends to be appointed and attend Court. The suggestion is that this helps meet the needs of litigants who are unable to afford the costs of legal representation. Some would though argue McKenzie friends can hinder the judicial process, and on occasion make it more acrimonious and difficult. There is a degree of risk that where the McKenzie friend has no legal experience at all they may put the litigant in person at risk of agreeing to something which may not be in their best interests.
There are of course benefits of the fee- paid McKenzie friend, especially if they have legal experience. In those circumstances, they may be able to adequately advise a party as to the likely procedure involved within the court room, or the factors the court will consider when making a decision.
Fee-paid McKenzie friends are however currently unregulated; they therefore require no legal qualifications or experience. This opens up the possibility of people charging for a service of which they have neither experience or knowledge of. In contrast to solicitors and barristers, many McKenzie friends are independent and none are not governed by a code of conduct or a professional body. This arguably therefore places even greater risk on the litigant in person if matters go wrong and the litigant is unable to lodge a complaint or seek compensation.
There is of course also the possible breach of the Data Protection Act 1998 to consider. McKenzie friends are unlikely to have access to the same systems as solicitors which enable them to hold sensitive and personal information about their clients.
Should fee-charging Mckenzie friends be regulated?
The LSCP report suggests that a number of McKenzie friends would welcome being regulated. However, it is also pointed out that the costs of implementing such regulation would be expensive. This would increase the charges of McKenzie friends, thereby pricing a large proportion of their target clients out of the market. The LSCP suggest that instead a combination of measures would be better. These include a shifting of attitudes towards McKenzie friends generally, with the LSCP considering that fee paid McKenzie friends may be viewed by the judiciary as a potentially valuable source of support that improves the general public’s access to justice. Clearer guidance and better training is also recommended, as is the suggestion that McKenzie friends who have behaved improperly should be restricted by the use of civil restraint orders, and that these should be published on Gov.uk so that litigants in person can check this before instructing a paid McKenzie friend.
The LSCP does not however agree that, like lawyers, McKenzie friends should automatically have rights of audience due to the potential harm this may cause to third parties and other litigants.
The LSCP stated statutory regulation is not necessary at this stage but did go on to say that the sector should develop a credible system of self-regulation in order to earn greater trust from judges, the legal profession and the general public.