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Bar Council and Law Society call for prohibition of paid “McKenzie friends” and for a replacement term to avoid confusion for Litigants in Person

The responses to the Judicial Executive Board’s Consultation – Reforming the courts’ approach to McKenzie Friends

The Judicial Executive Board Consultation in relation to reforming the courts' approach to McKenzie Friends closed on 9 June 2016. Consideration will be given by the Lord Chief Justice and the Judicial Executive Board as to what, if any, steps need to be taken to reform or replace the Guidance and what the nature of any changes will be.

The Foreword to the Consultation indicated by way of example, that "it may be necessary to invite the Lord Chancellor and the Civil and Family Procedure Rules Committees to make rules of court. Alternatively, it may only be necessary to update the present Practice Guidance on McKenzie Friends."

The Consultation paper acknowledged that:

"Over the last 15 years there has been a particular growth in the number of individuals who, for a variety of reasons, have either not or not been able to instruct lawyers to act on their behalf. They have acted as litigants in person (LIP). This growth was expected to increase further following the reduction in legal aid effected by the Legal Aid, Sentencing and Punishment of Offenders Act 2012.9 Anecdotal evidence suggests that this has been borne out since the 2012 Act came into force in April 2013. More significantly however it is clearly borne out by the National Audit Office, which reported 30% increase post-April 2013 in family proceedings where one or both parties were LIPs."

Responses to the Consultation

The Law Society
Some of the main points of The Law Society's response to the consultation included:

• The majority of the practice guidance should remain as guidance, rather than be incorporated into the rules of the court.

• There should be inserted into the rules of court a prohibition on McKenzie friends being able to recover fees, either by way of disbursement or other form of remuneration.

• There should not be a separate code of conduct, because such a code might deter family and friends from acting as McKenzie friends and might imply that McKenzie friends are quasi-regulated.

• The term McKenzie friend should be replaced by the term 'supporter'.

For further details, click here

The Bar Council
The Bar Council has responded to the consultation and indicated that the term McKenzie Friend should be replaced by simpler, more descriptive titles such as "case helper", "litigant's helper" or "helper."

It submitted that, "there should be a prohibition on fee-recovery, either by way of disbursement or other form of remuneration"  and indicated that,

"Those who regularly provide legal services or assistance to members of the public (as opposed to helping out a friend on a one-off basis) should be properly trained, regulated and insured."

To access its response click here

Family Courts
The Bar Council has commissioned field research, looking at McKenzie Friends in the family courts.  That work is being conducted by an independent research team led by Dr Leanne Smith from Cardiff University and the results are expected to be published in early 2017.

The Society of Professional McKenzie Friends' initial response to the consultation dated 25 April 2016 is here and its supplementary response dated 8 June 2016 is here.