Straitened times have led to an increase in litigation before the courts involving lay litigants or litigants in person acting without formal legal representation. Notwithstanding that such litigants may not have instructed a solicitor or barrister, they sometimes appear with assistance from a non-legally qualified third party. While limited third-party assistance is permissible, there are limits to what those third parties can do – but those limits are often overstepped. Recent practice directions across the various levels of the court (applicable from the start of October 2017) provide important guidance on the scope of such assistance.
In conducting litigation before the courts, lay litigants have historically been allowed some assistance from non-legally qualified third parties to support them in exercising their right of access to the courts. This entitlement was recognised in the English case of McKenzie v McKenzie(1) where it was recognised that "any person, whether he be a professional man or not, may attend as a friend for either party, may take notes, may quietly make suggestions and give advice". However, such judicial recognition also circumscribed the limited assistance such a 'McKenzie' friend can give. In particular, McKenzie friends do not have a right of audience before the courts on behalf of a lay litigant and those rights can be enjoyed only by the lay litigants themselves or legal professionals instructed by them.(2)
Certain cases have arisen where third parties assisting lay litigants, ostensibly as McKenzie friends, go beyond the narrow scope of assistance that may be given. Consequently, the work of the courts and the interests of the litigants have been hindered on occasion.
Although the courts have been slow to preclude parties from having McKenzie friends assist them, the courts have been careful to stress that parameters do apply. For example, in AIB plc v Aqua Fresh Fish Limited(3) the court observed that a McKenzie friend is "expected to behave in such a manner as reflects the mutuality of respect essential for all players participating in the administration of justice". Indeed, in another case where the applicants had relied on a purported McKenzie friend which the court understood had assisted other lay litigants in other cases, the High Court indicated that it would grant an order (ultimately not pursued) precluding that party from acting as a McKenzie friend (subject to conditions).(4)
In light of judicial concerns regarding the proper scope of assistance being given to lay litigants in proceedings before them, the presidents of the Court of Appeal and the High Court have issued a joint practice direction (HC72) setting out the scope of what a McKenzie friend may and may not do when acting. More recently, a practice direction has been issued by the president of the circuit court in identical terms (CC19). All apply from October 1 2017 and give clarity to the role of the McKenzie friend.
Specifically, the practice directions confirm that McKenzie friends may:
- provide moral support for litigants;
- take notes;
- help with case papers (subject to Section 58 of the Solicitors Act 1954 as amended, which makes it a criminal offence for an unqualified person, as defined in that act, to draw or prepare a document relating to, among other things, any legal proceeding either directly or indirectly for or in expectation of any fee, gain or reward); and
- quietly give advice on any aspect of the conduct of the case.
The practice directions also confirm that a McKenzie friend may not:
- address the court, make oral submissions or examine witnesses, nor does he or she have a right of audience or right to conduct litigation (although in exceptional circumstances a court may permit a McKenzie friend to address the court);
- receive any payment for his or her services;
- act as a litigant's agent in relation to the proceedings; or
- manage a litigant's case outside court (eg, by signing court documents).
The practice directions also clarify that a lay litigant may have only one McKenzie friend and that, notwithstanding the right to have assistance from a McKenzie friend, the court retains the power to refuse to permit such assistance and it may also regulate the manner in which assistance is provided, which includes the power to withdraw the permission to have a McKenzie friend.
The practice directions are an important reminder regarding the scope of the assistance that may be given by McKenzie friends, particularly in the context of increasing judicial concern that McKenzie friends may be a hindrance to litigation. The practice directions set out a useful summary of what may and may not be done by a McKenzie friend, which anyone acting as a McKenzie friend should be made aware of. Perhaps more importantly, it specifies the powers of the court to further circumscribe or limit the capacity of a lay litigant to engage a McKenzie friend, to which the lay litigant should pay heed.
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