Is a solicitor under a duty to warn their client of risks falling outside their retainer?
McKenzie Friend…or Foe?
“Anyone can call themselves a McKenzie Friend” – The Society of Professional McKenzie Friends Ltd (SPMF)
It is a fundamental principle in this jurisdiction that parties to a claim through the courts may represent themselves. These litigants in person are entitled to advice or assistance, other than in exceptional circumstances. The term ‘McKenzie Friend’ derives from the appeal of divorce proceedings in McKenzie v McKenzie  3 WLR 472 in which it was held that a judge had erred in refusing to permit Mr McKenzie to be accompanied in court by his friend. Lord Tenterden CJ’s judgment in Collier v Hicks  2 B & Ad 663 was cited to support the presence of a friend in court: 'Any person, whether he be a professional man or not, may attend as a friend of either party, may take notes, may quietly make suggestions, and give advice … '. While McKenzie Friends cannot represent a party in court, sign statements of case or court documents they can play a useful role in providing moral and/or practical support to litigants in person. The process is, after all, a particular and stressful one.
The role of a McKenzie Friend
McKenzie Friends cannot formally act for litigants in person in the way that solicitors and barristers can. The SRA is clear that non-solicitors can be prosecuted for so-called ‘holding out offences’, which include false representations of being legally qualified or the undertaking of reserved legal activities. These activities are set out in Section 12 of the Legal Services Act 2007, which includes exercising a right of audience and the conduct of litigation. Guidance on the presence of McKenzie Friends in civil and family proceedings was published in July 2010 (the ‘2010 Guidance’) and usefully sets out what McKenzie Friends can and cannot do. For example, it is an offence for a McKenzie Friend to address the court unless given specific permission by the judge and even then, only in exceptional circumstances.
The 2010 Guidance reserves the right for the court to refuse to permit the assistance of a McKenzie Friend if it is in the overriding interests of justice and fairness. There is clearly an upside in allowing the court to do so as it is, after all, privy to the circumstances as a whole. A McKenzie Friend may not always be of assistance, particularly if they are adversarial in nature to the point of not assisting the party to the claim on whose side they sit. Nevertheless the Court of Appeal in the matter of The children of Mr O’Connell, Mr Whelan and Mr Watson  EWCA Civ 759 (‘Mr O’Connell et al ’) emphasised that the presumption in favour of permitting a McKenzie Friend is a strong one. Article 6.1 of the European Convention on Human Rights pervades on any application by a litigant in person for the assistance of a McKenzie Friend. Lord Justice Wall went as far as to hold that (at least in principle) documents can be disclosed to a potential McKenzie Friend before any application to the court so long as they are aware that the documents should not be released or disclosed any further.
With substantial cuts in Legal Aid since April 2013 it is no surprise that there has been a dramatic increase in litigants in person and in turn McKenzie Friends. McKenzie Friends can, at their best, be helpful or even essential in contributing to justice. Those who are denied legal aid can feel that access to justice is extremely restricted; the appointment of a formal aide can help alleviate that feeling of isolation or persecution.
With costs being an ever increasing point of issue in relation to professional fees, why should a litigant in person not be able to recover costs for lay assistance? Time is, after all, money in this sense and with lawyers still charging by the hour, it is a question which arises all the more frequently. The 2010 Guidance states that litigants can enter into lawful contractual agreements to pay fees for the provision of reasonable assistance in or out of court from a McKenzie Friend. It also states that such fees cannot be recovered from the opposing party, except for fees for exercising a right of audience if granted, and can only be recovered from the litigant if the court has permitted it.
Fee-charging McKenzie Friends have created a profitable industry limb. Its rise has caused controversy with professional bodies, who are torn over whether fees should be permitted at all and if so, within what parameters. The judiciary, who are at the coalface in this sense, has proposed a ban on McKenzie Friends charging fees for their services. The response to the consultation is still awaited. Meanwhile, others such as the SRA believe a ban would be disproportionate to the current level of risk posed to litigants in person, which is a rather bold assertion.
2) Lack of regulation
Unlike the SRA for solicitors and Bar Standards Board for barristers, there is no official regulator for McKenzie Friends. This could leave litigants vulnerable to exploitation, particularly where McKenzie Friends charge fees for their services and those consulting them are, by their nature, unfamiliar with the legal process and in need of support.
The SPMF has been established as a self-regulated body which attempts to ensure some level of competency of its members and compliance with good practice and court rules. Impressively, it attempts to instill a level of accountability by providing a complaints procedure akin to the Legal Ombudsman and verification that all of its members have professional indemnity insurance so unsatisfied litigants can claim for financial redress without concern for the potential defendant being made of straw.
In lieu of abolishment, the judiciary has recommended that a Code of Conduct be established and proposed that rules governing the courts’ approach to McKenzie Friends be codified, so that the approach is aligned to litigants in person.
3) False Pretenses
The spotlight has been concentrated since more frequent instances of litigants suffering adverse consequences have emerged due to being ill-advised by McKenzie Friends. The recent case against David Bright and Claire Silverstone reported by the Law Gazette is one such example. David Bright, the McKenzie Friend, was found guilty of perverting the course of justice and sentenced to a year in prison after submitted a report which he claimed had been written by a professional clinical psychologist when in fact it had been written by his unqualified partner.
Some, including the president of the Law Society, Robert Bourns, are concerned that the risks are worryingly high for litigants who can become the victims of inexperienced and even unscrupulous McKenzie Friends. McKenzie Friends are in a position of trust, officially unregulated and able to abuse their roles. Litigants may engage their assistance without realising that they are more often than not unqualified and without a proper understanding of the legal process and its pitfalls.
The response to the consultation is eagerly awaited. In the interim, awareness should be raised that McKenzie Friends are not qualified solicitors and cannot represent them, but can only assist by providing moral and practical support. Those whom it may interest should be sign posted to the SPMF.
If, in the future, adequate regulations and fees can be reconciled with the type of assistance provided, then McKenzie Friends appear to be a positive way of promoting access to justice and ensuring a right to a fair trial. Lord Justice Wall in Mr O’Connell et al  notes a pragmatic suggestion that McKenzie Friends can helpfully ensure independence by producing a short statement for the court confirming that they have no personal interest in the case, understand their role and have an appreciation of court rules as to confidentiality. Parameters for rates and recoverability of costs would also be welcome by legal professionals and litigants alike.
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