In February 2016, the Lord Chief Justice of England and Wales published a consultation on reforming the courts’ approach to McKenzie Friends, and the possible reform and replacement of the current Practice Guidance with, for instance, rules of court or updated Practice Guidance. It also raises the issue of how any such rules or Guidance should approach the issue of fee-charging, or ‘professional McKenzie Friends’.
State retrenchment and legal aid cuts under LASPO have resulted in an increase in both litigants in person and the number of McKenzie Friends accompanying them. This increase, in JUSTICE’s view, exacerbates a number of concerns: poor quality or agenda-driven advice, failures to respect the proper limitations of their role, and a lack of adequate systems in place for protecting confidential information, the root causes of which are the current lack of regulation of McKenzie Friends and the fact that they have no professional duty to the court. Coupled with this, litigants in person may lack the knowledge or experience to evaluate the performance of their McKenzie Friend. Fee-charging McKenzie Friends, and those who are granted rights of audience, are of particular concern.
But this does not mean McKenzie Friends should be dispensed with: on the contrary, they have the potential to increase access to justice in the face of legal aid cuts, by providing valuable support. Planned reforms should be underpinned by a desire to achieve this, as well as recognition that the level and type of support provided by McKenzie Friends varies widely, some providing a range of legal services, and others – friends or family members – simply providing a supportive presence in the courtroom. JUSTICE’s response to the consultation is correspondingly informed by these considerations. We agree that the term ‘McKenzie Friend’ should be replaced by the more accessible term ‘court supporter’, and that the existing Practice Guidance should be replaced by rules of court which codify the law on McKenzie Friends – including a prohibition on fee recovery – and which would bring McKenzie Friends inside the remit of the rules committee. We also agree that a standard form notice should be used to ensure the court is provided with enough information about a McKenzie Friend, and that McKenzie Friends should be beholden to a Code of Conduct. We also agree that a plain language guide for both Litigants in Person and McKenzie friends should be developed.