McKenzie Friends – to pay or not to pay?

McKenzie Friends have been a growing problem for judges in recent years, particularly with the decline in the availability of legal and the growth of litigants in person.  They have to deal, for example, with the former bouncer who insults counsel on the other side and, I imagine, for all the help some give, others probably make a case worse.  The fact that a number ask for payment for their services which maybe of worse than dubious quality adds to the disquiet.

And while the Bar has been unhappy for some time about this and the Legal Services Consumer Panel has looked into it and thought, on balance that there wasn’t a problem with paying McKenzie Friend, no-one has shown any great keenness to get involved – and, to be fair, the only people that really could do so are the MoJ and the judiciary themselves.

The consultation

So the Judicial Executive Board’s recent consultation paper on the subject is understandable.  It’s also interesting because the judges seem to be stepping gingerly into the field of regulation.  It almost takes us back to medieval history when they did this through the Inns for barristers and made solicitors Officers of the Court.  There’s no body to regulate McKenzie Friends, so the judges do it themselves.

There are four main proposals:

  1. The courts should take a more formal approach, with rules governing McKenzie Friends part of the Rules of Court rather than, as at present in guidance;
  2. The name should be changed to “court supporter”;
  3. McKenzie Friends who seek permission to act as advocates or conduct litigation should provide the courts with a short CV and undertake to follow a Code of Conduct with respect to their duty to the court; and
  4. The court will not permit McKenzie Friends to appear if they are receiving direct or indirect payment for their services.

The first two seem relatively uncontroversial.  McKenzie Friends seem to be a growing feature of the landscape and it makes sense to have some formal rules governing their relationship with the courts.

As for the title, it’s laudable to have a title that is a bit more intuitive than McKenzie Friend.  Personally, I’m not sure that “court supporter” quite gets it – it sounds as though they’re supporting the court rather than the litigant, which doesn’t give quite the right impression.  But this is the sort of thing which you could argue about for ever.

Regulation by the court

It seems pretty clear to me that the requirements in the draft rules are taking a step towards regulating McKenzie Friends.  If you want to have a McKenzie Friend supporting you, you’ll need to have a statement of truth covering a CV and a statement that the McKenzie Friends understands their duties and obligations of confidentiality.  There’ll be a Code of Conduct and presumably the judges will deal with breaches of it directly.  The rules make it clear that they will have the same obligations as if they were a solicitor.  I wonder what the Law Society thinks about that.

The court will also have the power to revoke the permission (and be required to do so if it emerges that the McKenzie Friend is being paid).

It’s understandable and sensible for courts to want to have this control.  It’s still pretty rough and ready.  I doubt that the judges will have the resources to go behind the CVs and check.  Those CVs, I’m pretty sure, will not include the dodgier parts of any McKenzie Friend’s history.  But it’s a start.

There’s also no mechanism for establishing a consistent approach.  You can imagine different judges taking very different approaches to the same individual and that can’t be good to the system.  There’s nothing in the paper about any mechanism for recording decisions or enabling judges to provide feedback on any problems they encounter.  You can understand why they’d shy away from that, but sooner or later, I suspect, they’ll find that something like that will be necessary.

Should McKenzie Friends be paid?

Perhaps unsurprisingly, the judges have preferred the views of the Bar to those of the consumer panel and decided that McKenzie Friends should not be paid either directly or indirectly by the litigant in person.

There seem to be two main arguments.  First, they suggest that the pro bono facilities in the courts are sufficient to ensure that no one is without some professional support.  Really?

Secondly, they don’t want to create an incentive for a less regulated group of advocates to exist. There are statutory provisions within the Legal Services Act to achieve that and if legislators or regulators want to extend the boundaries, that’s for them to decide, not the judges.  You also sense that the judges would really rather not have to deal with a growing band of McKenzie Friends.  This is intended to discourage them.

How enforceable is it?  I suspect that determined litigants in person and McKenzie Friends could evade this requirement simply by keeping quiet.  But these things have a habit of being found out and a litigant will have a very good hold over the McKenzie Friend if they decide not to pay after all.  I imagine judges will use contempt sanctions fairly heavily if they find out that they’ve been misled.  We’ll see.

And what about litigants in person?

The judges argue that these provisions will help protect the public from unscrupulous McKenzie Friends.  That’s probably right.  However, it’s also going to add a burden for the litigant in person who may well be put off by requirements that they and the McKenzie Friends have to sign statements of truth, look at a Code of Conduct and send in a CV.

It’s also going to reduce the availability of support for litigants in person and reduce choice.  That was the concern of the consumer panel: how do you balance the needs of vulnerable people for decent support with protecting them from the unscrupulous.  Dodgy McKenzie Friends will probably be reduced, but a few very good ones may disappear as well.  I hope the judges are right that there’s enough pro bono support available.