The judiciary has ducked the issue of banning fee recovery by paid McKenzie friends saying that is a matter for the government. A long-awaited consultation response published today instead suppports the production of a 'plain language guide' for the benefits of litigants in person and that practice guidance be updated.
Today’s document follows a consultation first opened in February 2016 into the growth in reliance on McKenzie friends following the 2013 legal aid reforms. In light of what it said was a ‘high level’ of responses, the Judicial Executive Board (JEB) set up a working party in September 2017 to consider the matter further.
Among the issues the consultation addressed was a call for a ban on fee recovery by McKenzie friends to hold unqualified advisers to a code of conduct. Today’s recommendations, which have been sent to the lord chancellor, appear to hold fire on both proposals.
In total, the consultation attracted more than 200 respondents. Responses were ‘broadly supportive’ of the introduction of a Code of Conduct and ‘in terms of numbers, overwhelmingly opposed to a prohibition on fee-recovery', today's document states.
The executive board said the growth in reliance on McKenzie friends, and ’particularly fee-charging ones’, should be considered in the context of the impact of changes to legal aid under the Legal Aid, Sentencing and Punishment of Offenders Act. ’It is for the government to consider appropriate steps to be taken to enable LiPs to secure effective access to legal assistance, legal advice and, where necessary, representation,’ the response adds.
However, it states that the Judicial Executive Board remains ‘deeply concerned’ about the proliferation of McKenzie friends who in effect provide professional services for reward when they are ’unqualified, unregulated, uninsured and not subject to the same professional obligations and duties, both to their clients and the courts, as are professional lawyers’.
'All courts should apply the current law applicable to McKenzie friends as established by Court of Appeal authority,’ the response states.
Law Society president Christina Blacklaws commented: 'Court proceedings are complex, and are not easy for untrained people to deal with. The risks to clients include that the paid friend will give them bad advice, will make bad arguments, will fail to make good arguments, and may well end up pursuing a case that should never have been brought, or losing a case that should have been won.
'If that happens, the client will have no redress with an unqualified, unregulated friend. They won’t in fact be "a client" with rights like a solicitor’s client: they are simply the customer of a paid friend. There is a significant risk a McKenzie friend will not be aware of the rights of the person they are representing and cost them dearly by getting the law wrong.
'Moreover it is not unusual for paid McKenzie friends to charge several hundred pounds for their services.'