With an ounce of knowledge

On 2 September 2014 the Legal Services Board (LSB) wrote to the Legal Services Consumer Panel in response to their report on fee-charging McKenzie friends. The LSB welcomed the report at a time when the legal services market is entering a period of change and uncertainty, but expressed caution at the reports recommendation that fee-charging McKenzie Friends should be recognised as a legitimate feature of legal services.

The evidence upon which the report is written is a cause for concern. It is based largely on interviews with 28 fee-charging McKenzie friends and a trawl of their websites. Crucially, there is no input from consumers or clients of McKenzie friends. In my opinion, this makes the report biased, which is evident in some of the recommendations made.

The report flags up the following:

• Very few McKenzie friends have legal qualifications and yet most freely give legal advice on points of law and the conduct of the case. Puzzlingly, the fact that McKenzie friends are committing a criminal offence by conducting litigation is largely ignored.

• The majority of McKenzie friends do not have professional indemnity insurance. They are only meant to offer assistance rather than provide professional advice, which means that insurance may not be available in any event.

• Clients are often charged upfront on a no-refund basis and there is rarely a contract or formal paperwork in place. Consumers are vulnerable to the risks of gross overcharging and not receiving the service that they have paid for, with no insurance or industry body in place for redress.

• Rights of audience should only be granted in exceptional circumstances, yet McKenzie friends are routinely granted this right by the courts.

• A lot of McKenzie friends chose their career following their own negative experience of the court process. Having their own agenda is not compatible with objectivity and emotional detachment. Strong personal views may have a negative impact on the case.

• A lack of knowledge of relevant case and statute law leaves clients exposed to poor advice. They may be persuaded to pursue a course of action which has no chance of success.

• Fees paid to McKenzie friends cannot be recovered from the opposing party, yet this information about exposure to costs is rarely provided to clients.

• Some have shown a lack of understanding of the Data Protection Act. Clients’ personal data has been revealed in testimonials and on social media.

Despite all of these observations, the report recommends that fee-charging McKenzie friends should be recognised as a legitimate feature of the evolving legal services market. The overriding reason for this is the provision of access to justice to those who cannot afford to pay a qualified lawyer. While it could be argued that McKenzie friends help provide litigants in person with access to the courts, whether they provide access to justice is certainly debatable. The report further recommends that external regulation of McKenzie friends should not be introduced and voluntary self-regulation is recommended as a suitable alternative. This is not satisfactory. The identified risks of unregulated McKenzie friends operating in the courts on behalf of vulnerable clients should not be swept under the carpet, and voluntary self-regulation does not provide the necessary safeguards.

The report states that there is no evidence of consumer detriment, regardless of the fact that the report is littered with case studies of bad behaviour and clients being duped financially, and being given bad advice. The attitude appears to be that regulation will only be deemed necessary if and when great numbers of consumers have made their stories of ruin available to the scrutiny of the Legal Services Consumer Panel; a case of shutting the stable door after the horse has bolted.

It is hard to see how consumers can be protected from the substantial risks without the existence of a regulatory body, with clear sanctions in place for those who break the rules. There needs to be a set of unambiguous directions setting out exactly what a fee-charging McKenzie friend is permitted to do, and these rules must be strictly adhered to by the judiciary. The emphasis needs to be shifted from the potential benefits to the considerable risks clients are exposed to, and information about these risks should be readily available to litigants in person, which will ensure they can make an informed decision about representation.

Nicola Caffery is a paralegal at Rayden Solicitors