‘McKenzie Friend’ or Foe?

Supporters of McKenzie Friends say that the service they provide is invaluable.  However it seems that some unscrupulous individuals are exploiting vulnerable litigants.

Since the reduction of legal aid in 2012, publicly funded legal advice and representation is often no longer available in the majority of cases. As such, those who simply cannot afford to instruct solicitors, are left with no option but to conduct their own litigation.

It is perhaps unsurprising therefore that in recent years, the civil courts have seen a marked increase in the number of litigants in person. In fact, statistics published by the National Audit Office in 2014 showed a 30% increase post-April 2013 of litigants in person in family proceedings.

At the same time, there has also been a rise in the number of third parties assisting litigants in person. Such parties are generally known as ‘McKenzie Friends’, following the decision in the divorce case of McKenzie v McKenzie [1971].

Traditionally volunteers, McKenzie Friends help litigants in person by providing in court, helping with case papers, taking notes and giving advice. However an increasing number now charge and a recent report showed that most had neither a legal qualification nor insurance.

Friend or Foe?

Supporters of McKenzie Friends say that the service they provide is invaluable and makes a positive contribution in helping litigants and reducing court delays.

However, the demand for McKenzie Friends following legal aid cuts, combined with a lack of regulation seems to have allowed some unscrupulous individuals to exploit vulnerable litigants.

Negative publicity

David Bright, a McKenzie Friend, was last month sentenced to 12 months in prison. He was found guilty of having perverted the course of justice in a family court. Mr Bright ran his own organisation called The Parent’s Voice, which purported to offer people help in family disputes, including child custody battles.

The jury found that during proceedings last year Mr Bright submitted a psychology report which had been compiled by his colleague and partner, Claire Mann. She had used her maiden name of Silverstone and falsely claimed to be a clinical psychologist. Two former clients also claimed Mr Bright had charged them £500 as a one-off fee with very little work being carried out on their cases.

Benefit of a legal professional?

Solicitors and barristers must abide by their regulators’ professional code of conduct and act in their clients' best interests. However, there is currently no such equivalent for McKenzie Friends.  Apart from a self-regulatory body, of which membership is not compulsory, they are otherwise unregulated.

In 2014 Nigel Baggaley, an ex-bouncer who had acted as a McKenzie Friend was subjected to an interim order preventing him from acting for anyone in court. It was claimed he had threatened other lawyers, sworn at ushers and phoned clerks to say he was ‘coming for’ opposing barristers. It may be hard to see how such behaviour could amount to acting in the litigant’s best interests. However McKenzie Friends of course have no professional obligation to do so.

It was precisely this sort of negative publicity which led to the Judicial Executive Board publishing a consultation on ‘Reforming the Courts’ approach to McKenzie Friends’. Amongst the board’s recommendations was the introduction of a code of conduct and a blanket ban on fee-charging McKenzie Friends, in line with current practice in Scotland.

Another reason to consider using a legal professional is because of professional indemnity insurance. Firms of solicitors are required to have such insurance in place to protect the public. Although The Society of Professional McKenzie Friends Ltd requires its members to have professional indemnity insurance, membership is not mandatory. Therefore, a litigant who receives incorrect legal advice from a Mckenzie Friend who is uninsured, could find that they are left without redress.

The consultation closed in June last year but the responses are yet to be published and it therefore remains to be seen if there will be future reform in this area. In the meantime, the above cases have highlighted the need for litigants to remain vigilant and if possible, why it might be best to instruct a legal professional.