While “deeply concerned” about the growth in fee-charging McKenzie Friends, the judiciary has failed to decide whether they should be banned – three years after consulting on doing just that.
The Lord Chief Justice, Lord Burnett, and the Judicial Executive Board (JEB) kicked the issue over to the Ministry of Justice instead.
Their response to the consultation issued in February 2016 only supported a non-judicial body producing a plain language guide for McKenzie Friends and litigants-in-person (LiPs), and updating the current practice guidance on McKenzie Friends.
The response, published yesterday, said the growth of McKenzie Friends had “coincided” with the period following implementation of LASPO and the Ministry of Justice’s recently completed post-implementation review of the legislation.
“The JEB conclude that the growth in reliance on McKenzie Friends, and particularly fee-charging ones, should be considered in the context of the impact of those changes,” it sad.
“It is for the government to consider appropriate steps to be taken to enable LiPs to secure effective access to legal assistance, legal advice and, where necessary, representation.”
This was despite the JEB remaining “deeply concerned about the proliferation of McKenzie Friends who in effect provide professional services for reward when they are unqualified, unregulated, uninsured and not subject to the same professional obligations and duties, both to their clients and the courts, as are professional lawyers”.
However, the response remained silent on whether there should be a ban on fee-charging McKenzie Friends, whether there should be a code of conduct and whether they should be renamed.
The JEB said when it launched the consultation back in 2016: “Reform should prohibit recovery of expenses and fees incurred by McKenzie Friends.
“It should do so through providing that the provision of reasonable assistance in court, the exercise of a right of audience or of a right to conduct litigation should only be permitted where the McKenzie Friend is neither directly nor indirectly in receipt of remuneration.”
However, in the response, the JEB said the “overwhelming, in numerical terms, view of respondents was that a prohibition on fee-recovery should not be introduced”.
Respondents opposed to the ban argued, among other things, that there was “no evidence to support the introduction of a ban”, the court had the powers to manage McKenzie Friends effectively, and a ban would put LiPs “in a worse position” while protecting the legal profession.
Arguments in favour of a ban included that “permitting fee-charging by McKenzie Friends in essence is permitting the development of an unregulated and uninsured branch of the legal profession” with no protection for LiPs from poor service or over-charging.
Respondents were “broadly supportive” of the introduction of a code of conduct.
“A number of respondents emphasised the point that a code should not be, or be seen to be, a form of regulation, and should be subject to consultation regarding its content.
“For others there was, however, a perceived risk that a code would be taken to imply McKenzie Friends were regulated. Others queried whether it would be too weak a form of control; it would have no legal force and be of no real benefit.”
Respondents were “fairly evenly divided” on the question of whether the term ‘McKenzie Friend’ should be replaced by a new “more readily understandable” name that “properly reflects the role”.
However a “narrow majority” of respondents rejected the JEB’s idea that McKenzie Friends should be renamed ‘court supporters’.
Most respondents were in favour or replacing the practice guidance on McKenzie Friends with rules of court.
A “large majority” were against the idea of taking different approaches to granting rights of audience in family and civil proceedings.
Respondents were “broadly balanced” in their responses to the question of whether a standard form notice, “signed and verified by both the LiP and McKenzie Friend”, should be introduced, although a “very large majority of responses from litigants-in-person objected”.
There were 156 responses to the consultation from individual members of the public, 30 from McKenzie Friends and five from academics.
There were 15 from judges, magistrates and judicial associations, 15 more from solicitors, barristers and law firms, and 20 from legal or McKenzie Friend representative or regulatory bodies.
Lord Burnett said the consultation response would be referred to the Lord Chancellor, David Gauke.