McKenzie Friends: a litigant’s guide

Posted on 15th Oct 2015 in Legal Profession

By Sarah Phillimore and Paul Magrath

The continued reduction in legal aid in cases involving family law, housing disputes etc, means that many people going to court are finding they have no choice but to represent themselves or try to get some help from someone other than an expensive lawyer. One such resource is a ‘McKenzie friend’. In this post we explain what a McKenzie Friend is, what they can and can’t do for you, and alert you to the possible risks and how to guard against them.

What is a McKenzie Friend?

The website Court without a lawyer describes the situation in this way:

Anyone involved in a family law case in a United Kingdom court is entitled to represent themselves in court (they do not need to employ a solicitor or barrister) and 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 very good reason.

More and more people are conducting their own Family Law cases in court, without a solicitor or barrister. This is because lawyers’ fees can be very high, and Legal Aid to pay these fees is becoming harder to obtain.

A McKenzie Friend can be one of three types:

  • They can be literally just that – a friend or family member, who comes to help you in court;
  • they can be a voluntary helper from an organisation that provides free legal advice; or
  • they can be a paid or “professional” McKenzie Friend, who is basically offering a service in exchange for a fee.

What can a McKenzie Friend do?

The scope of what a McKenzie Friend can and cannot do for you does not depend on whether or not they are paid. Being paid or calling themselves “professional” does not mean they are legally qualified, or regulated or insured, or that you would be better protected by using them. But it may mean they have more experience of court procedures, and for this reason both volunteer and paid McKenzies may well be more useful in helping you understand what is going on and when it is your turn to speak. On the other hand, a friend or relation will be just as good if you basically just need a bit of moral support and someone to bounce ideas off and help organise your papers.

The court issued guidance in July 2010 (PDF) to those who wished to come to court with a McKenzie friend, including the following:

Litigants have the right to have reasonable assistance from a layperson, sometimes called a McKenzie Friend (MF). Litigants assisted by MFs remain litigants-in- person. MFs have no independent right to provide assistance. They have no right to act as advocates or to carry out the conduct of litigation.

What McKenzie Friends may do

3) MFs may: 

i) provide moral support for litigants;

ii) take notes;

iii) help with case papers; 

iv) quietly give advice on any aspect of the conduct of the case.

What McKenzie Friends may not do

4) MFs may not:

i) act as the litigants’ agent in relation to the proceedings;

ii) manage litigants’ cases outside court, for example by signing court documents; or

iii) address the court, make oral submissions or examine witnesses.

The court can refuse to permit assistance from a McKenzie friend although ordinarily this should be allowed so that litigants in person can receive reasonable assistance.

If you want to be assisted by a McKenzie friend you need to let the judge know as soon as possible and provide something in writing about the McKenzie friend’s experience and his or her understanding of the MF’s role and the duty of confidentiality. If you have not written in advance to the court/judge, try to speak to court staff before the hearing to make sure the judge is aware of your intentions.

Paragraph 12 of the court guidance provides more details. The court cannot refuse to allow a MF to assist just because the proposed MF belongs to an organisation that promotes a particular cause or because the proceedings are confidential and the court papers contain sensitive information relating to a family’s affairs.

However, given that most family matters do stir up strong emotions and involve consideration of often very personal and sensitive information, it does make sense to make sure that your MF is familiar with and understands the particular demands of family cases.

Because when things go wrong with a MF, they can go very wrong indeed.

What are the risks?

The Legal Services Consumer Panel reported on paid McKenzie friends in 2014 (PDF) and noted the risks posed to consumers who buy legal services from those who may have no qualifications or training, are not signed up to any Code of Conduct and who have no insurance. (Some of these risks also relate to non-paid McKenzie Friends.)

Particular risks identified by the Panel were

  • being agenda-driven and exploiting vulnerable clients to pursue a personal agenda
  • providing poor quality advice
  • not understanding the limitations of the McKenzie Friend role
  • escalating fees
  • breaches of privacy
  • struck-off lawyers acting as McKenzie Friends (of which they said, “although rumours persist, we found no hard evidence of this is happening in practice”)

An example of what can go wrong when a McKenzie Friend steps out of line and basically does more harm than good to the litigant’s case is provided in a judgment about a MF called Nigel Baggaley [2015] EWHC 1496 (Fam) in which Judge Bellamy is quoted as having commented thus:

In this case Mr Baggaley’s behaviour in court today has been unacceptable. His attitude to counsel was wholly inconsistent with that to be expected of a McKenzie Friend in family proceedings. Mr Baggaley’s demeanour in court is matched by his attitude in his communications with the Mother’s solicitor and with Cafcass. His attempt to portray himself as the Mother’s representative, both on her notice of appeal and in letters, demonstrates either a total lack of understanding of the role of a McKenzie Friend or, and as I find more likely, a wilful disregard to the proper limits of the role of a McKenzie Friend. Mr Baggaley has served this mother very badly. As I said earlier, she has in truth been nothing more than a puppet in his hand. Mr Baggaley is not an asset to a litigant in person. He is a serious hindrance. I have come to the conclusion that I should make a Civil Restraint Order preventing him from acting as a McKenzie Friend in any family proceedings.

Of course, some of the risks of poor representation or shoddy advice posed by ‘rogue’ McKenzie friends are also posed by some lawyers. However, the key distinction between lawyers and McKenzie friends is the absence of protection when dealing with the latter, which is provided to the consumer by regulation.

The risks are not just that you might lose your case. You might also lose a lot more money than whatever you may have paid for the advice of someone who was not fully qualified to give it. An example can be seen in the case of H v Dent [2015] EWHC 2090 (Fam) where a father was assisted by two MFs to make a hopeless application to commit to prison two Cafcass officers and a solicitor – and ended up with a costs order against him.

What questions should I ask?

For those who cannot afford legal representation however, a good quality McKenzie friend can be a real help. We suggest that any one looking to get help from a McKenzie friend should consider the following questions and issues.

  1. What are their credentials? Have they been trained in any related or relevant profession (not law, but maybe accountancy, police or social work)?
  2. If they charge, how much are they charging and for what?
  3. Have you checked whether you could get a similar service from a lawyer? (Some lawyers will “unbundle” services to provide, say, a consultation to help identify the issues in the case and how best to prepare the paperwork.)
  4. What level of experience do they have in the kind of proceedings you are engaged in?
  5. Can they provide references? Does their website include testimonials and, if so, can you check them?
  6. How did you find them? (Or did they find you?) Have you googled them, checked Facebook, LinkedIn and other social media for comments by or about them?
  7. Do they have an agenda? If they are from a volunteer organisation, what is their reason for volunteering? Are they promoting an agenda, and if so, does that accord with your case or might it be a distraction?
  8. Have you searched on BAILII or other legal websites to see whether they have been cited or referred to in judgments – either adversely (such as those quoted above) or with approval (though it is rare for judges specifically to mention McKenzie Friends unless they cause trouble).

Ian Julian, an experienced McKenzie friend comments on Child Protection Resource:

Please be aware that the recent cuts in legal aid have encouraged numerous McKenzie Friends to offer a service at high prices, which may not always provide a quality or experienced assistance. Always check credentials such as observing media websites and checking for CV’s and experience. A novice wanting to help and gain experience, should not be seeking more than their expenses.

If your MF is advising you to go down a particular route that is unfamiliar to you or makes you feel uncomfortable, it is a good idea to ask them:

  • is this an unusual application / approach ?
  • if so, have you done it before, and how did it go?
  • have you found any reported cases where this has been tried and what happened there
  • do you consider that there’s any risk that in doing this, I might be ordered to pay the other sides costs if I lost ?

As Andrew Pack of the Transparency Project comments:

If the answers are: I don’t know, or feel vague without reasons, or a super confident “you don’t need to worry because we are bound to win” you might want to get a second opinion before you try it.

Conclusion

Going to court can be a daunting process, and having someone to stand by and offer moral support is a great boon. But courts are increasingly accustomed to litigants appearing in person and judges are generally much more patient and understanding than you might expect. So don’t feel you have to pay for a McKenzie Friend if you don’t have a friend or relative who can help.

However, if your case is complicated, or if you really feel it would help to engage someone to help, then make sure you do the research before choosing who to use. Ask the questions, check the issues, make the comparisons, and bear in mind the warnings. Then proceed only if you feel sure that you would be better off using their services than not doing so.

 

Sarah Phillimore is a barrister at St John’s Chambers, Bristol, and a site administrator of Child Protection Resource.

Paul Magrath is Head of Product Development and Online Content at ICLR.

Both are founding members of the Transparency Project.

 

*The case which established the name is McKenzie v McKenzie [1971] P 33; [1970] 3 WLR 472; [1970] 3 All ER 1034, CA.