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.
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.