Judiciary proposes ban on fee-charging McKenzie friends

Topics: Advocacy,Regulation and compliance,Litigation,Courts business

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The judiciary is proposing a ban on fee-charging McKenzie friends in order to protect ‘vulnerable litigants’ from unregulated and uninsured individuals.

In an eagerly awaited consultation on the issue, published today, the judiciary also recommends that all McKenzie friends sign up to a code of conduct, and that rules governing the courts’ approach to McKenzie friends be legally codified.

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The consultation follows mounting concerns over the behaviour of such practitioners after a former nightclub bouncer was last year barred from acting as a McKenzie friend after calling a lawyer a ‘lying slag’. 

Outlining its approach, the judiciary said it would be in the ‘public interest’ to prevent McKenzie friends from charging for their services.

Such a ban would also provide protection to vulnerable litigants ‘who would otherwise have little or no effective protection, or means of redress, from unregulated and uninsured individuals of varying and generally unverifiable competence carrying out otherwise reserved activities before the courts’.

Its proposals echo calls by the Bar Council to ban McKenzie friends from charging.

The judiciary consultation said this approach would be consistent with parliament’s intention that the rights of audience and rights to conduct litigation be subject to strict regulation.

It said: ‘The exclusion of financial incentives to seek and exercise such rights will arguably ensure that the courts’ jurisdiction to grant such rights remains within its proper boundary.’ 

The judiciary consultation adds that any extension of the rights of audience and litigation to paid McKenzie friends more generally ‘would seem to implicitly acknowledge the creation of a new branch of the legal profession… not subject to effective regulation on par with that provided by the existing frontline regulation’.

A judicial working group led by Mrs Justice Asplin (pictured) drew up the consultation.

On the issue of non-fee charging McKenzie friends, the judiciary said that current practice guidance does not have the force of law, and should be replaced with rules of court.

These rules, it said, would give greater clarity about the courts' powers to refuse to permit individuals to act as McKenzie friends if they are providing poor-quality assistance, or to bar them from acting in this capacity in future to provide better protection for litigants in person.

The rules could also enable different threshold tests for the grant of a right of audience on a case-base-case basis to be set in family and civil proceedings.

The judiciary has also suggested that McKenzie friends should sign a standard form notice, which would let the court know if they intend to seek a right to conduct litigation or a right of audience.

It would also require them to acknowledge that they owe a duty to the court and a duty of confidentiality in respect of the litigation, and verify that they agree to abide by a code of conduct. 

It also suggested replacing the term McKenzie friends, which it said could be confusing for litigants in person, with 'court supporter’. 

Ray Barry, chair of the Society of Professional McKenzie Friends, said: ‘The proposed prohibition on fee-charging McKenzie friends is neither in the interests of the consumer nor of the administration of justice. It is protectionism, pure and simple.

‘The […] consultation recommends that any McKenzie friend must be “neither directly not indirectly in receipt of remuneration.” This is to exclude not just fee-charging McKenzie friends but any salaried advice worker with CAB or other agency.’

'This tells the consumer that they must either pay whatever charges solicitors and barristers require of them or receive no legal help at all – no alternative is permitted.’

He added that the society’s 29 members all have professional indemnity insurance and a minimum of A-level law or three years' full-time experience.

Readers' comments (106)

  • Whilst in no way wishing to defend the worst excesses of MFism, and whilst of the unshakable view that 'professional' MFs ought to be regulated and insured, I do wonder what authority the judiciary could rely on if seeking to interpose itself between a litigant and a MF, where the former willingly agrees to pay the latter.

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  • Not a moment too soon.

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  • @Anonymous25 February 2016 01:11 pm:

    Ah! oooo.....kkkkkkk .....

    So what happens when a Company Director wants to appear in Court for it's own Company?

    Extend that to another Company?

    Become employed for the day for any Company Vehicle?

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  • Hmmm... the Judiciary straying into the area of regulation. Where were you when your idiot bretheren Charlie falconer was doing his worst ?

    The rapacious SRA will be all over you for muscling in on their very nice little earning 'patch'.

    The dogs breakfast that is now the legal profession continues in its Barrister led self destructing frenzy.

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  • another attempt to restrict a lay person from access to justice-particularly when this government seeks to increase the SCT limit in PI to £5000

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  • Lets hope their Lordships are equally concerned about unregulated persons posing as insolvency practitioners, charging fees.

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  • Surely calling MckF's 'court supporter' implies they are a real part of the court system?
    And taking away a valuable source of support for the LiP is more unfairness from the courts in an already biased system.

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  • "Court supporter" is ridiculous. Sounds like a dumbed-down version of amicus curiae. I very much doubt that most judges regard MFs as supporters/helpers of the court.

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  • While I'm not sure an outright ban is necessarily the best way forwards, I can understand why the judiciary feel that something needs to be done. Other advocates are subject to such stringent rules and regulations while at present there is practically no control over the activities of MKFs.

    If we proceed on the basis that these rules and regulations are strictly necessary to protect the interests of clients then it follows that clients need to be protected in the same manner when dealing with an MKF. If on the other hand the rules and regulations are not necessary then the question arises as to why we are making solicitors comply with them.

    The benefits of MKFs are that they are potentially cheap in comparison to qualified lawyers, but then this is because solicitor's fees are pushed up by the cost of complying with regulations. If we could reduce the regulatory burdens on solicitors rather than merely raising the burdens on MFKs, we could reach the happy position of having affordable representation by qualified advisors, which is surely what everyone wants.

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  • I think, Lydia, the answer lies in the distinction between MFs and advocates. Simply, MFs are not - or should not be - advocates.

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