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2010 practice guidance on McKenzie Friends 'should be updated and reissued'

Judicial Executive Board ‘deeply concerned about the proliferation of McKenzie Friends’

The Judicial Executive Board's response to the consultation on McKenzie Friends has recommended that the Practice Guidance issued by the Master of the Rolls and the President of the Family Division in 2010 be updated and reissued to ensure that it properly reflects the current case law.

In July 2010 the Master of the Rolls and President of the Family Division issued joint Practice Guidance (the Guidance) concerning the proper approach courts should take to the provision of reasonable assistance by non-lawyers, generally known as McKenzie Friends, to litigants-in-person (LIPs) in respect of legal proceedings. Since the Guidance, which summarised the case law as it stood in 2010, was introduced there has been a significant increase in the number of both LIPs and McKenzie Friends, and an increase in 'Professional McKenzie Friends', who provide their services to LIPs on a fee-paid basis.

The response acknowledges that there are varying strongly held views on the question of reform of the courts' approach to McKenzie Friends. It notes that the growth in McKenzie Friends has coincided with the period following the enactment of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. The government has been reviewing the impact of the changes to the availability of legal aid. 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 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.

The role of the judiciary, say the JEB, is to apply the law concerning the provision of legal assistance, the right to conduct litigation and rights of audience according to the law established by the Legal Services Act 2007, the common law and precedent.

The JEB remain 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. The statutory scheme was fashioned to protect the consumers of legal services and the integrity of the legal system. The JEB's view is that all courts should apply the current law applicable to McKenzie Friends as established by Court of Appeal authority.

The JEB support the view that a plain language guide could be produced by a non-judicial body for the assistance of LiPs. The judiciary continues to support the promotion of public legal education which would be aided by such a guide.

For the consultation response, click here.

27/2/19