Using a McKenzie Friend in Court

A McKenzie Friend is someone who accompanies a litigant in Court to provide moral support. They may also take notes, help the litigant find the correct papers and give advice on questions to ask witnesses etc. They cannot however speak for the litigant, or run the case for them.

McKenzie Friends arose from the 1970 divorce case of McKenzie v McKenzie. In that case, the husband was representing himself and wanted the help of someone who was not legally qualified in the English Courts. His request was refused. However on appeal, it was determined that having moral support in Court was part of being entitled to a fair trial under the European Convention on Human Rights. Any such assistants/supporters are therefore now referred to as ‘McKenzie Friends’.

A McKenzie Friend Can:

  • Give quiet advice on points of law to the litigant
  • Advise the litigant on issues that they might want to raise in Court
  • Suggest to the litigant questions that they might want to ask the other party or witnesses
  • Help organise documents
  • Take notes

A McKenzie Friend Cannot:

  • Speak for the litigant
  • Examine witnesses
  • Address the Court (though the Judge may be prepared to hear from them if this would clarify an issue and assist in the swift administration of justice.)
  • Attend a closed court unless they have prior permission from the Court.
  • Sign Court documents on the litigant’s behalf.

Will permission for a McKenzie Friend always be granted?

A judge will not usually refuse permission unless it’s believed that allowing the McKenzie Friend would interfere with the administration of justice (such as if the McKenzie Friend constantly interrupts proceedings). However often the court will issue a warning to the litigant and McKenzie Friend first, before an outright refusal is made.

If the judge decides refuse permission for a McKenzie Friend, they must give reasons for doing so. Usually any refusal will be for a particular person to act as a McKenzie Friend rather than generally for the litigant to have any McKenzie Friend.

Why has there been a recent increased demand for McKenzie Friends?

Traditionally, McKenzie Friends were family members or friends, there to provide moral support free of charge to the litigant. However there are some professional McKenzie Friends who charge for their assistance (but are still far cheaper than solicitors).

In April 2013, the government changed the rules in relation to legal aid. This meant that litigants no longer receive free legal assistance in most family law cases, including those relating to divorce, child contact and residence, and civil cases relating to debt, housing, immigration, welfare and employment.

The change in legal aid rules left many litigants who couldn’t afford a lawyer with a simple choice; go to court on your own or hire a (far cheaper) McKenzie friend. The demand for professional McKenzie Friends has therefore increased.

How much do McKenzie Friends charge?

Typically, professional McKenzie Friends charge between £16 and £90 per hour, depending upon experience and qualifications.

Although their role is supposed to be limited, they are increasingly mirroring the service provided by qualified lawyers. For example, they are not allowed to conduct litigation, but there is really nothing to stop them advising a litigant (word by word) what to write in a document, in such a way that there is really no difference.

Who are professional McKenzie Friends?

There seem to be two “branches” of McKenzie Friends:

  • Professionals with experience of the legal system, such as former social workers, and police officers.
  • Those with personal experience of the legal system having dealt with similar cases of their own.

Help or hindrance?

Help
McKenzie Friends can improve access to justice by providing valuable support for litigants in person. Attending Court can be a daunting experience, particularly for those who have not been before, and so many litigants feel encouraged to have someone who has been in the situation before sit with them and reassure them.

Many judges have also commented that in the high-pressure environment of the courtroom, McKenzie Friends can actually help litigants to separate emotion from fact. By encouraging the litigant to focus on factual issues, they help litigants to better present their case and assist the Court to more swiftly deal with matters.

Hindrance
There is however a real worry that the provision of services as a McKenzie Friend is completely unregulated. Some (perhaps well-meaning McKenzie Friends) can provide poor advice to their client that actually harms their client’s case. Poor legal advice can lead to a litigant losing a perfectly good case, which does not serve to assist the litigant’s cause, or the administration of justice for any of the parties involved.

There are also concerns that McKenzie Friends often take advantage of vulnerable litigants (those without the funds to afford a lawyer, and often those with lower academic abilities who do not feel as comfortable setting out their own arguments). Unfortunately due to the nature of the role and the lack of regulation of the field, it is the more vulnerable or desperate litigant that will often be left with the cheapest and least effective advice.

Conclusion

McKenzie Friends can be a helpful moral support to litigants. However there are better and worse McKenzie Friends, and you often get what you pay for. Having a poor McKenzie Friend (as with a poor lawyer) is not a reason for a re-trial of an issue. However unlike with lawyers, McKenzie Friends are unregulated and usually not insured, meaning that you have no recourse if their advice is incorrect.

Therefore whilst your McKenzie Friend may offer you guidance, it is important to remember that it is your case and your opportunity to present your side of the dispute.

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