‘Campaigning’ McKenzie friends avoid £2,000 cost order

Topics: Immigration,Courts business

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A High Court judge has dismissed an order for two McKenzie friends to pay costs of £2,000, even though she said they went beyond their remit and racked up wasted costs in an immigration case.

Instead the claimant they were attempting to assist will have to bear the full burden of the £4,400 cost order.

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Belinda McKenzie and Sabine McNeill acted as McKenzie friends on behalf of Melissa Laird in her attempt to fight her deportation to the US.

In this capacity they applied to renew a judicial review against a deportation order.

But after neither the claimant, who had been deported by this time, nor the McKenzie friends, turned up to the hearing dealing with the application, Mrs Justice Simler (pictured) initially ordered that the McKenzie friends should pay half the costs for pursuing a case which was 'unarguable' and 'misconceived'.

However in Laird v Secretary of State for the Home Department this week, barrister Simon Butler, acting for the McKenzie friends, warned that such an order could deter others from providing this kind of assistance for fear of the costs consequences.

He also said the court should have refused the pair permission to apply for judicial review as they were not entitled to conduct litigation. 

Giving her judgment yesterday, Simler said: ‘There is a great deal of guidance on what McKenzie friends are and are not entitled to do when they are providing such assistance and provided they don’t step outside their proper remit they should have no fear [of a cost consequence].

‘It seems to me there is no principled reason as to why a McKenzie friend should be treated differently than any other party.’

She added that holding the court responsible was ‘an abdication of responsibility’ and put too a high burden on the court.

She said: ‘[The McKenzie friends] wasted costs in relation to matters which could have been disposed of as academic in light of the claimant's removal from the country.

‘It seems to be me they did significantly step outside the limits of their role as McKenzie friends. They also appear to have been pursing the case for their own campaigning purposes. They had their own personal interests as members of the Association of McKenzie Friends in the litigation, which was not in the claimant's own interest.’

But the judge ruled that the McKenzie friends should not pay costs as they genuinely believed they were helping the claimant. She also noted that, although they were aware they were not entitled to conduct litigation on the claimant’s behalf, no order was made refusing them permission to do so.

Simler said: ‘Looking at all of the facts in the round, whilst I am quite satisfied that the [McKenzie friends] overstepped the limits of their role and made the [Treasury Solicitor] accrue wasted costs, I step back from the brink of making them liable to pay costs personally and I do that in the regard for the impact such an order would have on them.’

She said the costs order against the McKenzie friends should be set aside, and said the burden of costs should fall fully on the claimant. 

Readers' comments (11)

  • I'd like to see the judgment.

    For the present, will a solicitor or barrister be able to use a "best of intentions" argument against a wasted costs order?

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  • If a solicitor acted otherwise than in their client's interest pursuing an unarguable and misconceived claim for their own personal interests and failed to attend a hearing, all of which caused wasted costs to the other side one would expect a wasted costs order against them, and for the matter to taken up by the SRA and SDT.
    If you are a McKenzie friend you walk away scot free because you are being treated no differently than any other party.
    Am I missing something or has April fools day come early this year?

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  • All the Judges have to do is to stop allowing non-regulated people to act as advocates.

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  • Impossible to say without seeing the judgment. Seems a strange decision.

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  • Did I read elsewhere that the "professional organisation" i.e. a trade association, which holds itself out as a regulator has 29 members?

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  • Should we have a seperate legal system for unrepresented litigants and McKenzie Friends?The problem is that the rules get in the way when you are a non lawyer!

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  • When a McKenzie Friend assists a pro se litigant they act only in the role of back up, whether they operate beyond their remit or not. If they do, it is the pro se's fault, not the MF's. The solicitor and client relationship is different because the advocate is acting 'on bahalf of' the client and can operate how they see fit or fail to act at all if the client wants to take a difererent course of action. It really isn't difficult. Also, people are entitled to represent themselves, whether they have assistance or not, so tha argument to prevent MF's is a redundant one when we have lay judges (magistrates) and non-expert juries.

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  • So it is alright for the taxpayer to pick up the bill?

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  • People go to Mckenzie friends in desperation as they cannot afford the legal costs of a small simple case. Lack of trust and over-charging by high percentage of Solicitors is another reason why a Mckenzie friend has become more common.
    The Courts should and I believe are obliged to assist and show indulgence to McKenzie friends who are not being paid.

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  • The court certainly showed some indulgence to MFs in this case. And no, the court is not obliged to assist or show indulgence to them. If the court has to assist the MF, what is the point of the MF being there in the first place?

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