The Judicial Executive Board (JEB) has issued a consultation paper proposing reforms to the existing guidance for ‘McKenzie Friends.’ The Consultation Paper summarises the current position in law, subsequent developments and poses questions in a number of areas, the key points being reproduced below.
- Terminology – the paper asks whether the term McKenzie Friends – should be updated to something that is more readily understood – such as ‘Court Supporter’. The original term stems from a divorce case in the 1970s in which an Australian barrister, without rights of audience in England Wales, sought to represent a party.
- Developing rules of court – the paper discusses whether the existing Practice Guidance should be replaced with formal rules of court. The courts’ approach to this issue is grounded in case law, and codification into rules would enable reforms to be made, and allow differences for different types of proceedings (for example, between civil and family cases). Codification would also provide greater clarity and consistency in the approach courts take to McKenzie Friends.
- Providing notice – the paper suggests reforms to help litigant in person (‘LiPs’) LiPs understand what roles McKenzie Friends can play and any limitations on what they can do. LiPs would need to inform courts in advance if they intended to use a McKenzie Friend, and would give the courts information on that lay supporter.
- Code of Conduct – the paper proposes that the standard notice process includes a Code of Conduct for McKenzie Friends that they would be required to agree to comply with. This would ensure that, as with legal representatives, they would acknowledge a duty to the court, and a duty of confidentiality in relation to the litigation.
- Plain language – the JEB believes that whatever reforms take, a plain language guide for both LiPs and McKenzie Friends should be produced, and it raises the question whether should a guide should be drafted by a non-judicial body with expertise in drafting court user materials is commissioned for this work.
- Prohibition on fee recovery – the paper proposes that there should be a prohibition on fee recovery by paid McKenzie Friends in line with the practice adopted in Scotland, where lay supporters may only provide assistance, representation or the conduct of litigation if they are not in direct or indirect receipt of remuneration. The JEB’s intention is to protect the public interest and vulnerable litigants from unregulated and uninsured individuals seeking to carry out reserved legal activities. This approach is also in line with Parliament’s intention that rights of audience (the ability to appear and present a case in court) and to conduct litigation should be strictly regulated.
- General – Views are welcomed on other points that should be considered or taken into account in making reforms on this topic.
The JEB has invited comments to be submitted by 19 May 2016. Comments can be sent to email@example.com.
The paper suggests that the broad approach to be adopted will also be applied to the Court of Protection.
One immediate comment we have is that there is no consideration of the specific factors that may apply in relation to those who do not have capacity to conduct proceedings (whether in the Court of Protection or otherwise). For our part, we think that it is necessary that any legislation or guidance that is introduced makes clear that a McKenzie Friend (or their replacement) can only assist a person who has the capacity to conduct the proceedings as a LiP. We would also have thought that it should be made clear that the court should be very cautious indeed before allowing a McKenzie Friend to assist a litigation friend who is – themselves – a LiP (as is now allowed for post Re NRA).