The idea of going to court can be stressful for many people, especially those who haven't experienced the legal system before.
Having an experienced solicitor on your side can help alleviate this anxiety somewhat, as they can brief you on what to expect and how to act. However, for various reasons including cost, some people might choose to represent themselves in court, which is where a McKenzie Friend comes in.
In this article, we'll take a look at the different types of McKenzie's Friends, what they do, and how you find one. We'll also take a look at potential advantages and disadvantages of using McKenzie Friends if you're considering representing yourself in court (also known as being a "litigant in person").
What is a McKenzie Friend?
A McKenzie Friend is someone who can provide assistance to a litigant in person during court proceedings.
The name McKenzie Friend was coined back in 1970 during the divorce proceedings of Mr McKenzie, who was unable to afford a solicitor to represent him during the court case.
Generously, the firm he was using sent Mr Hangar to represent him for free in court. However, Mr Hangar wasn't legally able to practise as a lawyer in England and the court refused to let him help with the case. In response, Mr McKenzie made an appeal, and the Court of Appeal said that Mr Hangar should have been permitted to help during the case, although not in the same way as a solicitor or barrister.
Thus, the McKenzie friend was born. And in 2010 guidance relating to McKenzie Friends was issued by the Master of the Rolls and the President of the Family Division, in response to an increase in litigants in person in all levels of the civil and family courts.
Who can be a McKenzie Friend?
Litigants in person have the right to reasonable assistance from a layperson (i.e. someone not trained in the law).
Therefore, a McKenzie friend can be:
A family member of friend;
A voluntary helper;
A fee-charging McKenzie Friend.
Individuals who represent themselves in court can pay a McKenzie Friend for their assistance both in and out of court, however these fees can't be recovered from the opposing parties.
What can a McKenzie Friend do?
A McKenzie Friend can:
Provide moral support;
Help with case papers;
Quietly give advice on the conduct of the case.
Out of court a McKenzie Friend may also carry out activities like photocopying documents, preparing bundles or delivering documents to opposing parties or the court.
What can't a McKenzie Friend do?
A McKenzie Friend can't:
Act as a spokesperson during the court process;
Sign important papers on behalf of the litigant in person;
Talk directly to the judge, make speeches in court, or question witnesses.
There is a caveat to the above. While McKenzie Friends don't have a right of audience, a litigant can apply for a one. However this is very rare and is decided on a case by case basis.
Do you have to have a McKenzie Friend if you represent yourself in court?
There is no obligations for litigants to have a McKenzie Friend.
Furthermore, sometimes the court might decide that a McKenzie Friend isn't appropriate for a specific situation and they can refuse a litigants right to reasonable assistance.
How to bring in a McKenzie Friend
If a litigant wants to bring a McKenzie Friend, they should tell the judge straight away.
It's likely that the court will want to know who the chosen McKenzie Friend is and confirm that they aren't personally involved in the case. Furthermore, they need to understand what being a McKenzie Friend is all about, including their duty of confidentiality.
If the court want to put limits on a litigants right to have assistance from a McKenzie Friend, they need to provide justification on why this is. Generally, however, the courts are open to letting a McKenzie Friend be present in legal proceedings.
What is the difference between a McKenzie Friend and a solicitor?
A McKenzie Friend can provide moral support, take notes and help you understand proceedings, but generally they aren't qualified lawyers and they certainly can't speak on your behalf in court of handle the case for you.
A solicitor, on the other hand, is a fully qualified legal professional. They will have gone through rigorous education and training, and they're authorised to provide legal advice, represent you in court, and handle all aspects of your case.
It's important to remember that a McKenzie Friend is not a replacement for a solicitor. Rather they are a source of support for individuals who choose to represent themselves in court.
What are the benefits of using a McKenzie Friend?
There are a few benefits to using a McKenzie Friend during legal proceedings, these include:
If you're representing yourself in court, there's a lot of paperwork to handle. A McKenzie Friend can help you organise all of this, from helping you to prepare court documents to guiding you through the process.
Familiarity in the legal process
If you appoint an experienced McKenzie Friend, they will be familiar with the legal process and will be able to provide some advice around what to expect based on their own experience.
Going to court can be stressful and nerve wracking, especially if you're representing yourself. Having someone by your side can be a great confidence booster for those who might feel intimidated by the process.
What are the disadvantages of using a McKenzie Friend?
They are unregulated
As we've noted, pretty much anyone can be a McKenzie Friend, from a family member or friend to more experienced McKenzie Friends whose services you pay for.
As you may imagine, this does come with some risks vs using a qualified solicitor, as McKenzie Friends aren't usually qualified legal professionals and any advice they give regarding your rights, or the law, may not be accurate.
Solicitors, on the other hand, are regulated by the SRA. Therefore, they have rules governing how they conduct themselves and it is possible to make a complaint about a solicitor if you feel they haven't delivered on the services they promised.
They aren't always free
If you use a family member of friend as a McKenzie Friend, they're unlikely to charge you for their help, however they also are unlikely to have the experience you might want for someone whose job is to support you in court proceedings.
While some volunteer McKenzie Friends attached to charities will offer their services for free, other McKenzie Friends will charge a fee and their rates can vary. Again, as they are unregulated, there's no fixed rate in terms of payment and costs can't be recovered from the other side if you win. So, in some cases it may be more cost effective to appoint a solicitor who may be able to get the matter solved quicker without having to go to court at all.
Without a shadow of a doubt, having a McKenzie Friend by your side in court proceedings can be a great boost of confidence if you can't afford the help of a solicitor. That being said, it's really important to understand what a McKenzie Friend can and can't do for you, and whether representing yourself in course really is the best course of action for your matter.
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