The case for a blanket ban on paid McKenzie friends has not been made, the Legal Services Board and the Solicitors Regulation Authority said in chorus today.
Responding to a judicial consultation, which, among other things recommended banning fee-charging McKenzie friends, the LSB argued that there was not enough evidence that their existence was harming consumers.
For its part, the SRA said that a blanket fee ban would mean litigants in person ‘may not get access to support, even where there are no quality issues’. It said such a ban could even limit charities from charging small fees to recover their costs and warned the prohibition would be difficult to enforce.
The super-regulator said the judiciary had not examined what impact a ban on fee-charging McKenzie friends would have on consumers and did not explain why the current discretion courts have was not sufficient to manage any potential risks.
Neil Buckley (pictured), chief executive of the LSB, said: ‘We know from our 2016 individual legal needs survey that 64% of consumers with a legal problem do not seek independent assistance in dealing with it. In this context, any moves to restrict consumers’ choices should be targeted and based on evidence of detriment.
‘We do not believe that the consultation paper adequately explains why a ban is necessary, what harm the ban would address or what the consequences of the ban might be for consumers.’
Listing its reasons for proposing a ban on paid McKenzie friends, the judiciary consultation warned that adding any extension to the rights of audience and litigation to McKenzie friends could create a ‘new branch of the legal profession’.
But the LSB said it was ‘not convinced’ that the fact of a fee being charged or that more LiPs are asking courts to exercise their discretion means a new branch of the profession is being created.
It noted that recent data suggests that the prevalence of fee-charging McKenzie friends was ‘relatively low overall’. Its 2015 legal needs survey showed that just four out of 5,512 consumers seeking legal assistance had recorded using a paid McKenzie friend as their main provider.
The LSB also warned against plans to codify the rules governing the courts’ approach to McKenzie friends and to make McKenzie friends sign a standard form notice to let the court know if they intend to seek a right to conduct litigation or a right of audience.
It said the proposed rules appear to prevent judges from allowing individuals to exercise these rights if they are charging a fee or seeking to recover costs.
It cautioned that additional burdens on McKenzie friends, such as the standard form notice, might impact disproportionately on the most vulnerable consumers, particularly those who have less time to plan and prepare for a court hearing.
While the board said it saw the value of a code of conduct for McKenzie friends, there was insufficient detail for it to support the proposal.
The SRA said it supported codifying the courts' approach to McKenzie friends and creating a code of conduct. It said that while it was not in favour of making the process for appointing McKenzie friends unduly bureaucratic, it would support a standard form notice provided there was simple guidance on how to complete it.
Both the SRA and the LSB supported plans to rename McKenzie friends and to produce a plain-language guide for LiPs and their unqualified advisers.
The Legal Services Consumer Panel echoed the SRA and LSB in cautioning against banning fees, warning that the move could ‘inadvertently impinge on access to justice as well as exacerbate existing vulnerabilities’.