A McKenzie Friend is someone who assists a Litigant in Person in court. McKenzie Friends are not necessarily legally qualified and their role is more limited than that of a solicitor or barrister.
The name derives from a divorce case in 1970 in which a barrister who was qualified in Australian but not English law attempted to assist Mr McKenzie at a court hearing. The judge would not let the barrister take any active part in the case; Mr Mckenzie appealed to the Court of Appeal. It was decided that Mr Mckenzie had been deprived of assistance to which he was entitled and a retrial was ordered.
Law Society guidance on Litigants in Person (LiPs) published in 2012 sets out clearly the role of a McKenzie friend:
- A McKenzie Friend is permitted to further the interests of justice by achieving a level playing field and ensuring a fair hearing. Requests for assistance from a McKenzie Friend will only be refused for compelling reasons, and in the event, the judge must explain those reasons fully to the LiP and the prospective McKenzie Friend;
- A McKenzie Friend cannot speak directly to the court unless invited to do so;
- Confidential information and court papers can be disclosed to a McKenzie Friend;
- A McKenzie Friend may assist with such tasks as taking notes, helping to organise documents, and making suggestions;
- McKenzie Friends are not permitted to manage a case outside court therefore all correspondence must be addressed to the LiP;
- A LiP will need to advise the court if a McKenzie Friend will be attending hearings, meetings etc., but a McKenzie Friend has no right of address to the court; and
- The court should not exclude the proposed McKenzie Friend from the courtroom whilst the application for assistance is being made by the unrepresented party, as a LiP who requires a McKenzie Friend is likely to need their assistance to make the application for their appointment in the first instance.
The reduction in the availability of legal aid has meant that McKenzie friends are becoming more prevalent. Judges are now having to spend more time dealing with litigants in person and generally they welcome the involvement of a sensible and experienced McKenzie Friend to deal with a case efficiently.
McKenzie friends were in the news recently as they are forming a trade association called the Society of Professional McKenzie Friends. Currently there is no requirement for McKenzie Friends to have Professional Indemnity Insurance. This means that if they give incorrect advice the client has no comeback. The new Society intends for its members to have Professional Indemnity Insurance and to have achieved a certain level of academic qualification. The purpose of setting up the Society according to its Chair is to “inspire consumers and give them confidence”.
For people who cannot afford to pay a solicitor a reputable McKenzie Friend can assist greatly in dealing with often difficult and emotionally charged court proceedings. As solicitors we have to accept and even embrace new and different ways of working in the consumer driven market in which we operate.