Bar Council: McKenzie friends should not be allowed to charge for legal services

The Judicial Executive Board (JEB) has issued a consultation paper proposing reforms to the existing guidance on McKenzie friends, including a ban on fee-charging.

The call comes following a rise in the number of unrepresented litigants in person (LiPs). A reduction in access to legal aid, as a result of government reforms, has led to an increase of McKenzie friends being needed to provide advice in the courts.

Since the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) 2012 came into force in April 2013, the National Audit Office has reported a 30 per cent rise in family proceedings where one or both parties were not represented by a solicitor or barrister.

A prohibition on fee recovery by paid McKenzie friends has been put forward to protect vulnerable litigants from unregulated and uninsured individuals seeking to carry out reserved legal activities.

The Bar Council has previously advocated a ban on McKenzie friends from charging for their services.

Responding to the JEB consultation, chairman of the Bar, Chantal-Aimée Doerries QC said: 'McKenzie friends are unregulated, uninsured and mostly unqualified, and the Bar Council agrees that they should not be allowed to charge people for legal services.

'One of the impacts of LASPO is that hundreds of thousands of people who previously qualified for legal aid are no longer eligible, and for many people this means they must represent themselves in court. Appearing as an [LiP] is often daunting and challenging, and having support from a friend or colleague acting voluntarily as a McKenzie friend can be an important source of support,' she continued.

'An unfortunate consequence of legal aid cuts is that paid McKenzie friends, who are not regulated or insured and are rarely legally qualified, have been charging up to £90 an hour to represent people in court. We have already seen one McKenzie friend banned from court for intimidating witnesses and legal representatives, and another jailed for defrauding his clients.

Doerries added: 'The courts and tribunals judiciary is right in that allowing paid McKenzie friends to continue implicitly condones the creation of a new branch of the legal profession, albeit one which is unregulated.

'Those who instruct a paid McKenzie friend would be better off employing a junior barrister or solicitor. This is often more cost effective and will always represent better value for money. Barristers and solicitors are qualified, regulated and insured, but McKenzie Friends tick none of these boxes.'

Also among the proposals, the JEB is asking for views on whether the title of McKenzie friend should be changed to something more readily understood, such as 'court supporter'.

Concerns have surfaced that the current terminology has been incorrectly used to include individuals that have been granted rights of audience and the right to conduct litigation.

Codification of the existing practice guidance is also discussed in the paper, which would allow for variances for different types of proceedings while also providing greater clarity and consistency in the approach the courts take to McKenzie friends.

Reforms to help LiPs understand what role McKenzie friends can play, and any limitations on what they can do, are also under consideration. This would see LiPs needing to inform courts in advance if they intended to use a McKenzie Friend, and providing the court with their details.

The consultation also asks for opinions on a new code of conduct to complement the standard notice process which McKenzie friends comply with and a plain language guide for both LiPs and their supporters.

The role of the McKenzie friend remains controversial in legal circles, with fears from family law practitioners in particular that the sector will eventually be 'dominated by organised and self-regulated' non-lawyers.

However, District Judge Nigel Law, who sits at Blackpool County Court and is a regular SJ author, has opined that the assistants to many LiPs know what they're doing and should be afforded respect from solicitors and barristers.

The JEB's consultation opens today and closes on 19 May 2016.