With friends like these…? A guide to McKenzie Friends

Like my old guitar teacher once told me, if playing was easy, everyone would do it, and quite spectacularly, I couldn’t.

Likewise, the law can be hard, and more often than not it is sensible to engage the help of a qualified legal professional. However, for a variety of reasons that is not always possible, and so many litigants in person rely upon the help of McKenzie Friends.

What is a McKenzie Friend?

McKenzie Friends are so-called following McKenzie v McKenzie [1970] 3 All ER 1034 where it was permitted for a litigant who is not legally represented to have reasonable assistance from a layperson. Such assistance can be invaluable to vulnerable litigants.

What can McKenzie Friends do?

The Practice Guidance: McKenzie Friends (Civil and Family Courts) [2010] 1 WLR 1881 sets out a summary of what McKenzie Friends can and cannot do:

They can:

• provide moral support for the litigants
• take notes
• help with papers
• quietly give advice on points of law or procedure or issues that the litigant may wish to raise in court; suggest questions the litigant may wish to ask witnesses

They cannot:

• act as the litigant’s agent in relation to the proceedings
• manage litigants’ cases outside court, for example by signing court documents; or
• address the court, make oral submissions or examine witnesses.

Significantly, the Practice Guidance allows McKenzie Friends to be lawfully remunerated for the assistance that they are permitted to provide, albeit those fees and costs cannot be recovered inter partes.

Issues with McKenzie Friends

The fact that McKenzie Friends are permitted to charge a fee for their work sees a number of individuals online, including various social media outlets, holding themselves out as experts in given fields of law and offering their services and setting out their experience and CVs akin to professional, regulated legal service providers.

As with all trades, services and professions, there are the good and the bad. The good will know their limits and be upfront about what they can and cannot do and will have public liability insurance. However, others may have little or no legal training or experience, offer assistance that they cannot or should not provide, and have no insurance if things go wrong.

So, any litigant in person has to be cautious and satisfy themselves before they rely on any advice provided by any such individual, that that person is competently able to help with the issues at hand. 

All of the above brings me to a recent unfortunate situation where a claimant litigant in person, with significant advice and input from a McKenzie Friend, wrongly issued Part 8 proceedings in the QBD of the High Court when they in fact wished to issue a Part 8 application within the Family Court.

The Part 8 claim form was accompanied by a ‘Statement of Case’. Upon the acknowledgement of service being filed, the claim was transferred to Part 7 and so a defence was subsequently served.

Despite the defence highlighting questions of jurisdiction, and numerous meetings with the claimant and her McKenzie Friend to clarify precisely how they wished to pursue their claim, they insisted that they intended to proceed within the QBD of the High Court.

The matter was listed for a CCMC, which was attended by the claimant and her McKenzie Friend. Despite initial protestations and insistence that they had pursued the claim in the right forum and intended to proceed, upon explanation from the judge, it was finally accepted that they had incorrectly instigated the claim in the QBD and at all times this was a claim intended for the Family Court.

The claim was discontinued at the CCMC with a significant costs order against the claimant. The McKenzie Friend is now nowhere to be seen.

Is this fair?

There is no reason why a McKenzie Friend ought not to be liable for negligent advice to the person they are assisting; see for example the judgment of Wright v Troy Lucas and Co [2019] where an unqualified legal adviser held himself out as a competent legal professional and so owed a duty of care to his client to that standard.

Whether or not the conduct of a McKenzie Friend gives rise to arguments over wasted costs will always be fact sensitive. In R (on the application of Laird) v Secretary of State for the Home Department and (1) Belinda McKenzie (2) Sabine McNeil [2016] EWHC (QB) the defendant secretary of state sought wasted costs orders against two McKenzie Friends.

Acknowledging the benefit that McKenzie Friends can and do offer, it was held that wasted costs could only be ordered where they had clearly overstepped the mark of what they were authorised to do, and where there had been prior warning that a costs order might be made against again them.

The takeaway from this brief note is that anyone who seeks to engage the help of a McKenzie Friend should satisfy themselves that that person is competent to provide the help and advice being sought, whether or not a fee is being paid. It would also be prudent to ask whether they hold professional indemnity or public liability insurance for the services they offer.

Dealing with a problematic McKenzie Friend

For anyone who is opposed by a McKenzie Friend, and has suspicions that negligent advice is being given — or worse, that the McKenzie Friend is effectively running the litigation — an early marker should be to be laid down to make that McKenzie Friend aware that they may be pursued for wasted costs, if their conduct is negligent, misleading or outside the limit scope of what they are permitted to do.