Over the last number of years the number of litigants in person (those representing themselves in legal proceedings without the assistance of solicitors or barristers) has increased. This is at least partly attributable to the financial circumstances in which some litigants find themselves. In many cases litigants in person seek the assistance of non-lawyers in conducting either the prosecution or defence of the litigation, known as “McKenzie Friends”.
The Presidents of the Circuit Court, the High Court and the Court of Appeal have moved to clarify the role of the McKenzie Friend including the parameters within which they may operate in providing assistance to litigants in person. This has been done by means of Practice Directions which came into force on 1 October 2017.
A litigant who is assisted by a McKenzie Friend will remain a litigant in person. While a McKenzie Friend may assist a litigant, there is no independent right to provide assistance. A McKenzie Friend has no right to act as advocate for a litigant or to carry out the conduct of litigation.
A litigant is limited to the assistance of one McKenzie Friend in Court. A McKenzie Friend may:
- Provide moral support for litigants;
- Take notes;
- Help with case papers; and
- Quietly give advice on any aspect of the conduct of the case.
A McKenzie Friend may not:
- Address the court, make oral submissions or examine witnesses or otherwise conduct litigation. In exceptional circumstances a court may permit a McKenzie Friend to address the court. Such circumstances will be rare;
- Receive any payment for their services;
- Act as the litigant’s agent in relation to the proceedings;
- Manage litigants’ cases outside court, for example, by signing court documents.
The Court has the discretion to refuse to permit a litigant the assistance of a McKenzie Friend if the Court is satisfied that the interests of justice and fairness do not require any such assistance. The Court may also withdraw permission for the assistance of a McKenzie Friend if the administration of justice is being impeded.
The Practice Directions bring the attention of litigants and proposed McKenzie Friends to the provisions of s. 58 of the Solicitors Act 1954, as amended, which makes it a criminal offence for an unqualified person to draw or prepare a document relating, amongst other things, to any legal proceeding either directly or indirectly for or in expectation of any fee, gain or reward.