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McKenzie Friend consultation underway

03 March 2016

The United Kingdom's Judicial Executive Board has issued a consultation paper which proposes reforms to the existing guidance for "McKenzie Friends" - non-lawyers who offer assistance and sometimes seek to appear as advocates on behalf of litigants in person.

The consultation is the result of a rise in the number of both litigants in person and McKenzie Friends.

An existing UK Practice Guidance on McKenzie Friends for the civil and family court was issued in 2010, but the Executive Board believes it needs to be updated to address issues and developments which have arisen since then.

Included among the proposals is replacement of the term "McKenzie Friend". The consultation paper says that while "McKenzie Friend" only properly applies to individuals providing litigants in person with reasonable assistance, it has come to be used to describe individuals who are granted rights of audience on a case-by-case basis.

Among the suggestions for replacement terms is "court supporter".

The term arose from the case McKenzie v McKenzie [1971] P 33 when Australian barrister Ian Hangar had been refused permission to assist Mr McKenzie, an unrepresented party in divorce proceedings. On appeal the Court of Appeal held that the trial judge had been wrong in not allowing Mr McKenzie to have Mr Hangar's help. The jurisdiction to permit a litigant in person to receive reasonable assistance predated the decision.

The Executive Board has posed a number of questions in its discussion paper and is seeking comments by 19 May 2016.

McKenzie Friends have become more prominent in the United Kingdom, with organisations such as the Society of Professional McKenzie Friends Ltd and Voluntary Public Interest Advocacy providing a framework.

In New Zealand the Law Commission looked at McKenzie Friends in its 2012 report on a Review of the Judicature Act 1908: Towards a new Courts Act.

The Commission felt that litigants in person should be able to have a support person with them in court unless that person will obstruct the efficient administration of justice.

The New Zealand Law Society's comments on the Commission's review stated (chapter 15, question 47) that the Law Society supported allowing a litigant in person to use a lay assistant or McKenzie Friend.

"That role is to take notes, quietly make suggestions and to give advice but not take part in the proceedings as an advocate for the self-represented party," the Law Society said.

It said while problems did not appear to have arisen in New Zealand from McKenzie friends who were "semi-professional", the problems in this country occurred when inappropriate people were allowed to fill the role of a lay assistant, usually caused by their being involved in concurrent court proceedings or being a member of a group with particularly focused interests.

The Law Society noted that the use of McKenzie Friends in the Family Court context sometimes seemed to give rise to "particular challenges"

It felt that some guidance outlining the role of McKenzie Friends in New Zealand courts would be helpful.

"In the Law Society's view the discretion to allow a McKenzie Friend must remain with the judge who is to hear the case. It is preferable that the basic test for the appointment of a McKenzie Friend and the role of a McKenzie Friend should be set out in the relevant court rules rather than by a judicial practice note."

Last updated on the 3rd March 2016