At Barrett & Co we understand that parties will often need to consider the cost of Court representation. We will always try to give parties an idea of costs and we also appreciate that legal costs are an additional expense for which to budget.
Due to the cuts to legal aid, we have found that McKenzie Friends are becoming more common in family proceedings (mainly for children and in financial matters). One or both parties may choose to ask a friend to assist them. If choosing to instruct a McKenzie Friend, the Court will still view that party as a litigant in person (where they, in effect, represent themselves).
The term McKenzie Friend derives from a case (McKenzie v McKenzie) from 1970 in which the Court accepted that Mr McKenzie could seek the support of his friend.
The main points in which a McKenzie friend can assist include:-
- Taking notes;
- Assisting with all relevant papers;
- Providing support to the litigant in person;
- Assisting in the conduct of the case including potentially advising on areas of the case itself;
However, a McKenzie Friend should not or cannot:-
- Address the Court;
- Examine Witnesses;
- Sign any Court papers on behalf of the relevant party;
- Act as an “agent” for the litigating party in the proceedings.
The role in this context is more supportive and is not intended as a form of replacement for the litigating party themselves. The litigating party will still be expected to have conduct of their litigation and thus the McKenzie Friend should not be speaking on behalf of that party.
The Court must still approve and permit the attendance of the McKenzie Friend and there is still a procedure to follow in obtaining the Court’s permission: which would include who the proposed person is; either a CV or Statement setting out their experience; that there is no conflict to their involvement in the case and that they should also confirm that they understand their duty of confidentiality to the Court and to the parties. The other litigating party can object, and the Court would need to be satisfied that it is fair and reasonable for the McKenzie Friend to be involved.
Although it is a rarity, there may also be times when a McKenzie Friend might undertake both the litigation and advocacy on behalf of a party. Again, the Court’s permission would be required, and submissions would need to be made by way of a formal application, which would normally need to be made at the start of a Hearing. Examples and reasons for this include that the McKenzie Friend is better placed to articulate on behalf of a party (thereby helping to speed up the process); there may be health issues preventing the litigating party representing themselves; where it is clear that the litigating party cannot afford legal costs (even though the McKenzie Friend can also charge for their services).
McKenzie Friends can be an option for some parties. However, please do note that McKenzie Friends are not obliged to work under the same regulations as Solicitors or Barristers; neither do they have the same requirement or expectation of training or have the same experience, and they do not have the same duty to the Court as a Barrister or Solicitor would have. “Professional” McKenzie Friends can charge for their time and as a result they may not be any more cost efficient than instructing Solicitors, and without the same protections.
Our recent experience tells us that, for example, family members who act as McKenzie Friends can overly complicate and delay matters. If for example, the family member wanted at some stage to file evidence as a witness, that might be reason to oppose that this person should be appointed as a McKenzie Friend.
For these reasons, we would always recommend obtaining legal advice prior to starting any process or indeed if considering acting as a Litigant in Person because the apparent costs savings may not in reality occur.
For further information, please contact our family team for further advice, including a fixed fee one-hour meeting for £95.