Following recent observations by Mr. Justice Peart in Butler & Butler v Nelson & Co. Solicitors, the Court of Appeal and the High Court have issued a Practice Direction in respect of the role of a McKenzie Friend in litigation.
A McKenzie Friend is a person who is permitted to attend court with a lay litigant to provide assistance where required. This note outlines the provisions of the Practice Direction.
What a McKenzie Friend can do
- In Court, a McKenzie Friend may provide moral support, take notes, help with case papers and quietly give advice on any aspect of the conduct of the case.
- A McKenzie Friend may address the Court, but only if the Court permits it (which is a rare occurence).
What a McKenzie Friend can’t do
- A McKenzie Friend does not have an independent right to provide assistance, no right to act as an advocate and no entitlement to payment for services.
- A McKenzie Friend does not have a right of audience or the right to conduct litigation.
- A McKenzie Friend may not act as the litigant’s agent or manage the litigant’s case outside Court.
The Court’s powers
The Court retains the power to refuse permission to a McKenzie Friend to provide assistance, if it is satisfied that the interests of justice and fairness do not require the litigant to receive such assistance. The Court has the power to regulate the manner in which assistance is provided and may withdraw permission if of the opinion that the administration of justice is being impeded by the presence of the McKenzie Friend.
The Practice Direction draws attention to the fact that it is a criminal offence for an unqualified person to prepare a document relating to any legal proceeding in expectation of payment or reward.
The issuance of this Practice Direction, which comes into force on 1 October 2017, is a welcome development in regulating the role of McKenzie Friends, given the concerns outlined by Mr. Justice Peart in Butler & Butler v Nelson & Co. Solicitors. See our earlier article on this case here.