What is a McKenzie Friend ?
If you are a litigant in person or planning to represent yourself in the court, you can do everything yourself from filing court document to arguing your own case in court. For most people, that is a daunting task, and a bit of help is always welcome. Hence, the advent of what are called “McKenzie Friends” or “Court Lay Assistant”.
The name “McKenzie Friend” derives from a legal case from 1970 called McKenzie v McKenzie. This was a divorce case and because the husband was unable to afford to continue using solicitors, those solicitors, for free, sent someone (Mr Hangar) to represent him in court. Mr Hangar was not entitled to practice as a lawyer in England – in fact, he was a barrister qualified in Australia. The court refused to allow Mr Hangar to assist Mr McKenzie in court, and insisted upon him sitting only in the public gallery. When Mr McKenzie’s case went badly, he appealed to the Court of Appeal. The Court of Appeal held that the judge had been wrong: Mr McKenzie should have been permitted to have this assistance in court, and a re-trial was ordered.
McKenzie Friends role described in details on the family court website.
McKenzie Friends can guide you on how to navigate the family court system, do the preparation and the hearing attendance and more.
What McKenzie Friends may do
i) provide moral support for litigants;
ii) take notes;
iii) help with case papers;
iv) quietly give advice on any aspect of the conduct of the case.
What McKenzie Friends may not do
MFs may not:
i) act as the litigants’ agent in relation to the proceedings;
ii) manage litigants’ cases outside court, for example by signing court documents; or
iii) address the court, make oral submissions or examine witnesses.
The Guidance also provides that the Court may refuse to allow a party to be represented by a McKenzie Friend:
A litigant may be denied the assistance of a MF because its provision might undermine or has undermined the efficient administration of justice. Examples of circumstances where this might arise are:
i) the assistance is being provided for an improper purpose;
ii) the assistance is unreasonable in nature or degree;
iii) the MF is subject to a civil proceedings order or a civil restraint order;
iv) the MF is using the litigant as a puppet;
v) the MF is directly or indirectly conducting the litigation;
vi) the court is not satisfied that the MF fully understands the duty of confidentiality.
The Guidance emphasises that a McKenzie Friend does not have the right to conduct the litigation or, unless specifically granted by the court, rights of audience (the right to present the case orally in court):
MFs do not have a right of audience or a right to conduct litigation. It is a criminal offence to exercise rights of audience or to conduct litigation unless properly qualified and authorized to do so by an appropriate regulatory body or, in the case of an otherwise unqualified or unauthorized individual (i.e., a lay individual including a MF), the court grants such rights on a case-by-case basis. Courts should be slow to grant any application from a litigant for a right of audience or a right to conduct litigation to any lay person, including a MF. This is because a person exercising such rights must ordinarily be properly trained, be under professional discipline (including an obligation to insure against liability for negligence) and be subject to an overriding duty to the court. These requirements are necessary for the protection of all parties to litigation and are essential to the proper administration of justice.
Any unrepresented party to civil or criminal litigation is entitled to have a support person to provide assistance in court. The support person may attend as a friend of the party, may take notes, may quietly make suggestions and may give advice. These support people are known as “McKenzie friends” after the United Kingdom case that confirmed their legitimacy. McKenzie friends are permitted in almost all common law courts.
A McKenzie friend does not have the right to take part in the proceedings as an advocate. However, the court has the discretion to allow the friend to play a greater role, such as speaking for the party if they think this is appropriate. This discretion must be exercised in the proper manner and in the interests of justice. The opposing party is equally entitled to a fair trial. If the court considers that a particular McKenzie friend will obstruct the efficient administration of justice then the court can decline to allow that person to act as a McKenzie friend or remove someone who is already acting as a McKenzie friend.
In the United Kingdom, there was confusion among litigants and their friends and relatives about the role that a non-lawyer support person could play in court. Despite expectations that these support people could turn up to court and address the court on behalf of a litigant, cases such as Izzo v Philip Ross & Co made it clear that permission for a McKenzie friend to address the court was an indulgence and courts should consider matters on a case-by-case basis. There were, however, some inconsistencies in the rules applied to McKenzie friends. This led to requests for further guidance on representation in the Civil Procedure Rules and practice notes. The Master of the Rolls as the Head of Civil Justice has issued a guidance note on McKenzie friends for the Civil and Family courts.
This outlines what a McKenzie friend can and cannot do. It states that a self-represented litigant has the right to use a McKenzie friend and the litigant should apply requesting the assistance at the earliest possible stage and provide details of the proposed McKenzie friend. It makes it clear that the court should provide reasons for a decision to refuse to allow a litigant to use a McKenzie friend. The Civil Justice Council has also recently proposed a draft code of conduct for McKenzie friends.Where proceedings are held in open court, it is clear from the principles set out in Court of Appeal decisions that a litigant who is not legally represented has the right to have reasonable assistance from a layperson, sometimes
called a McKenzie Friend (“MF”).
• A litigant in person wishing to have the help of a MF should be allowed to do
so unless the judge is satisfied that fairness and the interests of justice do not
so require. The presumption in favour of permitting a MF is a strong one. •
A litigant in person should inform the court at the outset of a hearing that he
intends to exercise his right to a MF. He should also indicate who his MF will
be. The court may refuse to allow a MF to act or continue to act in that capacity
where the judge forms the view that the assistance he has given, or may give,
impedes the efficient administration of justice. However, the court should also
consider whether a firm and unequivocal warning to the litigant and/or MF
might suffice in the first instance.
If a judge decides in the exercise of his or her discretion to refuse to allow a
MF to assist the litigant in person he should give the litigant reasons for his
refusal. The litigant may appeal that refusal, but the MF has no standing to
appeal such a refusal.
What a McKenzie Friend May Do
- Provide moral support for the litigant
- Take notes
- Help with case papers
- Quietly give advice on:
- points of law or procedure;
- issues that the litigant may wish to raise in court;
- questions the litigant may wish to ask witness
There have been cases involving “professional” McKenzie friends. These are people from support groups or non-governmental organisations who have experience helping litigants with court proceedings.466 An example in the United Kingdom was Dr Pelling, a campaigner for fathers’ rights who frequently acted as a McKenzie friend. On occasion he was refused leave to act as a McKenzie friend on the basis that his campaigning agenda and adversarial approach were not considered appropriate, and his experience may have led him to conduct the case himself rather than remain in the role of an assistant.
A McKenzie friend could be a lawyer who is not “on the record”, as was the case in McKenzie v McKenzie.468 However, a lawyer, whether funded privately or by legal aid cannot be obliged to accept the role of McKenzie friend if he or she is unwilling to do so. In R v Hill, the Court of Appeal discussed the fact that there does not seem to be any authority for allowing lawyers to act as McKenzie friends. The Court noted that this raises issues about legal professional privilege, the duties and liability of a lawyer to the accused, and the lawyer’s duty to the court.
There has been some speculation that the global financial crisis and the straitened circumstances of more litigants may lead to an increase in the reliance upon McKenzie friends rather than lawyers.