In recent years the Irish Courts have experienced a significant increase in the incidence of lay litigants in civil cases. In our experience there are a number of “professional” non-lawyers assisting the lay litigants with the preparation and presentation of their cases to the Courts. In many instances these non-lawyers have sought to argue and advocate the lay litigants’ cases for them, saying that they are a “McKenzie Friend” of the lay litigant.

A “McKenzie Friend” is a person who accompanies a lay litigant to Court to provide assistance, so-called because of the decision of the English Court of Appeal (McKenzie v. McKenzie[1]) which concluded that the trial judge had erred in refusing permission to an Australian barrister who was not qualified to practice in England and Wales, to give advice and assistance to Mr McKenzie.

In our experience, these so- called McKenzie Friends invariably make matters worse for the lay litigant by running pseudo- legal arguments that have no prospect of success and that have been used by the same McKenzie Friends and dismissed in earlier, unrelated cases. This ultimately leads to the lay litigant being exposed to and liable for increased adverse costs, while the McKenzie Friend has no exposure to the other party to the litigation.

As a result of these developments, on the 31 July 2017, The High Court and Court of Appeal published Practice Direction 72 which provides guidelines to persons acting as a “McKenzie Friend” and which will come into effect on the 1 October 2017.

In a judgment delivered by Mr Justice Michael Peart on 10 May 2017, in the Court of Appeal case of Michael Butler and William Butler v. Nelson & Co Solicitors[2], Justice Peart addressed the fact that many litigants cannot afford to pay for the services of a solicitor and in addition legal counsel, to represent them, as either plaintiff or defendant in their legal proceedings. Litigants are therefore finding it helpful to be accompanied in court by a so- called McKenzie Friend.

Justice Peart noted that assistance by a McKenzie Friend can be of benefit to the court itself, and not just the litigant, especially where the person assisting has some legal knowledge or experience with which to explain matters to the litigant in language which he understands, or can simply provide moral support to the litigant in this difficult and often challenging court environment, whether through personal friendship, family relationship or otherwise.

Justice Peart addressed the need for guidelines to be published so that the person who undertakes the role of a McKenzie Friend is fully aware of the role and the subsequent limitations.

The issue was also considered by Mr. Justice Eager in Swords -v- AIB Bank Plc & anor [3] where he examined how Article 19 of the Statute of the Court of Justice regulates the representation of parties in proceedings before the Court of Justice of the European Union. Member States and Institutions of the Union must “be represented before the Court of Justice by an agent appointed for each side”. The agent “may be assisted by an advisor or by a lawyer”. Most materially the Article then provides:-

Other parties must be represented by a lawyer. Only a lawyer authorised to practise before a court of a Member State or of another State which is a party to the Agreement on the European Economic Area may represent or assist a party before the court.”

Justice Eager highlighted that that there is no basis to the claim that a Court of a Member State is obliged to permit a litigant to be represented by a person other than a duly qualified lawyer.

The High Court Practice Direction 72 outlines that litigants may obtain “reasonable assistance”. The directive highlights that a McKenzie Friend has “no independent right to provide assistance”, and “no right to act as advocates or carry out the conduct of litigation”.

The role of a McKenzie Friend is to provide moral support, assist with note taking, and quietly give advice on any aspect of the conduct of the case. While they may also help with case papers it is subject to the provision of section 58 of the Solicitors Act 1954, which prohibits the preparation of legal proceedings by an unqualified person with the expectation of a fee, gain or reward.

The Practice Direction goes on to set out what a McKenzie Friend may not do. A McKenzie Friend may not address the Court and they have no right of audience or right to conduct litigation. Further, they are not entitled to receive any payment for their services (as permitted in England and Wales), to act as a litigant’s agent or to manage the proceedings outside Court. Further, they must provide their name, address and contact details if requested by the Court.

This Practice Direction provides guidelines on the role and obligations of a McKenzie Friend. The court however retains the power to refuse such assistance in circumstances where it is in the interest of justice and fairness. The court will continue to regulate the manner in which assistance is provided and may withdraw permission if the Court is of the opinion that justice is being impeded by the McKenzie Friend.