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All About McKenzie Friends

 

 

What is a McKenzie Friend?

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Anyone involved in a court case in England and Wales is entitled to represent themselves.  They do not have to instruct a solicitor or barrister to act for them.  If you are representing yourself, you are called a Litigant in Person (“LIP”). 

 

As a LIP, you have the right to have someone accompany you in court, to provide help and support.  That person is called a McKenzie Friend.

 

 

Why “McKenzie Friend”?

 

The name comes from a family law case called McKenzie -v- McKenzie heard as long ago as in 1970. 

 

Mr McKenzie had been legally aided.  However, his legal aid was withdrawn before his matter went to court.  Shortly before the hearing, Mr McKenzie met an Australian barrister, Mr Hanger.  Mr Hanger was not authorised to practise in England, but hoped nevertheless to accompany Mr McKenzie in court to prompt him, take notes and suggest questions for cross-examination. 

 

However, the trial judge did not permit Mr Hanger to take any active part in the hearing. 

 

When the decision went against Mr McKenzie, he appealed to the Court of Appeal.  He argued that the judge’s exclusion of Mr Hanger deprived him of his right to representation.

 

On 12 June 1970, the Court of Appeal ruled that the judge’s intervention had indeed denied Mr McKenzie the assistance to which he was entitled.  The case was sent back for a retrial, and the concept of the McKenzie Friend was born.

 

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"For many litigants in person, the real choice is actually between using a McKenzie Friend or being entirely unsupported – lawyers are beyond their means and free support is not universally available."
What can a McKenzie Friend do?

 

In 2010, the court issued a Practice Guidance note on the role of McKenzie Friends in Civil and Family Courts.

 

Paragraph 3 of that Practice Guidance note confirms that a McKenzie Friend may:

 

  • provide moral support for litigants

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  • take notes

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  • help with case papers

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  • quietly give advice on any aspect of the conduct of the case

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Paragraph 4 then describes what a McKenzie Friend may not do, namely:

 

  • act as the LIP's agent in relation to the proceedings

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  • manage the LIP's case outside court, for example by signing court documents

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  • address the court, make oral submissions or question witnesses

 

However, the court retains the power to grant a McKenzie Friend a “right of audience”; in other words, the right to address the court on your behalf.  Paragraphs 18 to 26 of the Practice Guidance note make it clear that granting a McKenzie Friend a right of audience is an unusual step, only justified by “special circumstances”.

 

Examples of the type of special circumstances found in the past to justify granting a McKenzie Friend a right of audience include:

 

  • where the LIP has health problems that prevent him / her addressing the court, combined with the LIP’s inability to afford to instruct a solicitor or barrister

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  • where the LIP has difficulty articulating his / her case, such that the grant of a right of audience might help achieve a swifter resolution of the hearing

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"... cases tend to progress more smoothly when McKenzie Friends can assist the court by encouraging litigants to separate emotion from the facts, facilitate cooperation with court processes and other parties, help with case papers and so on"
Can the court interfere with your choice of McKenzie Friend?

 

Whilst a court can refuse to permit a particular McKenzie Friend to assist you, this is rare. 

 

It usually only happens if the McKenzie Friend is deemed to be an unsuitable individual, such as if it appears the McKenzie Friend is the person (rather than the LIP) controlling the proceedings. 

 

For an example of such a case, see the Judgment in In the matter of Nigel Baggaley (aka Nigel Quinlan).  Mr Baggaley was found to demonstrate “either a total lack of understanding of the role of a McKenzie Friend or, and as I find more likely, a wilful disregard to the proper limits of the role of a McKenzie Friend.”  So extreme was his misconduct that the court took the highly unusual step of making an order prohibiting him from acting as a McKenzie Friend in the future.     

 

It is for you to decide who you wish to act as your McKenzie Friend.  Other than in exceptional cases (such as Baggaley), the court will respect your decision. 

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What are the benefits of having a McKenzie Friend?

 

In its report on fee-charging McKenzie Friends from April 2014, the Legal Services Consumer Panel said this:

 

“1.7. McKenzie Friends can principally benefit consumers by improving access to justice and enabling greater equality of arms, especially when the other side is represented. For many litigants in person, the real choice is actually between using a McKenzie Friend or being entirely unsupported – lawyers are beyond their means and free support is not universally available. Family law clients, in particular, may not litigate out of choice, but are forced by circumstances to fight over hugely important matters, at a time of great emotional stress, in an environment that is unfamiliar and daunting to them. 

 

“1.8. These benefits are being increasingly recognised by judges and lawyers, as they see that cases tend to progress more smoothly when McKenzie Friends can assist the court by encouraging litigants to separate emotion from the facts, facilitate cooperation with court processes and other parties, help with case papers and so on. At a time when the court system is under strain, this is an important public interest benefit. 

 

“1.9. Fee-charging McKenzie Friends can be seen to also widen choice for consumers and promote competition. There is a type of client which could afford a lawyer, but prefers a McKenzie Friend – perhaps because they want closer control over how the case runs or feel that lawyers do not provide the emotional support that a McKenzie Friend could offer. Arguably, lawyers and McKenzie Friends are not in direct competition as their roles are meant to be different and the client base using McKenzie Friends is uneconomic for lawyers to serve.”

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