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No case to ban fee-charging McKenzie friends, UK regulators say

02 June 2016 - By James Greenland

Restricting paid non-lawyer advocates from courts would mean litigants in person (LiPs) may not get access to legal assistance, the British Solicitors Regulation Authority (SRA) says.

Responding to recent calls by the British judiciary for a ban of paid 'McKenzie friends', the Legal Services Board of England and Wales (LSB) also says the case for a "blanket ban" has not been made. 

There is not enough evidence to support claims that the existence of fee-charging non-lawyer advocates is harming consumers, the LSB says.

The SRA points out that a blanket ban on McKenzie friends charging for their services could prevent self-representing litigants from getting help, "even where there are no quality issues".

It would also be difficult to enforce in practice, it says.

The legal services regulator says the judiciary has failed to explain why the current discretion courts have is not sufficient to manage any potential risks.

Chief executive of the LSB Neil Buckley says 64% of consumers with a legal problem do not seek legal assistance.

"In this context, any moves to restrict consumers' choices should be targeted and based on evidence of detriment," he says.

In its submissions, the judiciary had warned that extending the rights of audience and litigation to McKenzie friends could create a "new branch of the legal profession".

But the LSB was "not convinced" of that, because of the mere fact that a fee was charged by non-lawyer advocates. 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.

Both the SRA and the LSB have supported plans to rename McKenzie friends and to produce a plain-language guide for LiPs and their unqualified advisers.

McKenzie friends in New Zealand?

The Law Commission looked at McKenzie Friends in its 2012 report 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."

An example from recent NZ case law

Reference to the New Zealand law around McKenzie friends can be found in the recently reported case of Vesey v Police [2016] NZHC 557. 

Mr Vesey appealed a sentence of more than three years' imprisonment. He had earlier admitted one representative charge of supplying the class A controlled drug methamphetamine, "P".

In his judgement, Justice Moore noted that "no notice to appeal in the prescribed (or any other form) has been filed" (at [13]). Instead a "substantial volume of material" had been filed, along with a letter from Mr Vesey purporting to "give notice of appointment of Caroline Hohaia as my Power of Attorney and Executor/Executrix."

"I agree and confirm full agreeance to have Caroline Hohaia expressly represent myself in all matters legal and business pertaining and associated to me," Mr Vesey's letter to the court stated (reproduced at [13]).

Justice Moore said other documents appeared to have been filed by Ms Hohaia, on behalf on Mr Vesey (at [14]), including "what appears to be an apostolic letter issued by the Pope on 11 July 2013" (at [18]).

The judgment records that Ms Hohaia, at the beginning of the hearing, had advised that she appeared on Mr Vesey's behalf and that she would present his appeal. However, Justice Moore says he explained to Ms Hohaia the "limited role of a McKenzie friend" (at [19]).

"I pointed out that while she could assist Mr Vesey she was not permitted to argue his appeal on his behalf" (at [19], emphasis added).

After consulting with Mr Vesey, Ms Hohaia advised that she would act as a McKenzie friend. Justice Moore permitted her to sit with Mr Vesey at counsel's desk. "Although only Mr Vesey addressed me it was apparent Ms Hohaia provided assistance throughout in accordance with my directions," Justice Moore said (at [20]).

The appeal against sentence was ultimately dismissed.

In the case footnotes more detail is provided about the limited role of McKenzie friends.

"It is well-established that McKenzie friends are allowed to take notes, quietly make suggestions and give advice, and propose questions and submissions to the litigant.

"However, save in exceptional circumstances, they are not permitted to address the Court by making submissions or asking questions themselves."

Last updated on the 16th September 2019