New Practice Direction on the Role of McKenzie Friends
On 31 July 2017, the Presidents of the High Court and the Court of Appeal issued a much welcomed Practice Direction to clarify the role of McKenzie Friends when they attend in Court, alongside a lay litigant. The guidelines arose from recent observations made by Mr Justice Peart, in a decision of the Court of Appeal, during which he called for guidelines to be published setting out the nature of the role and the limitations of the role of a McKenzie Friend which are to be respected.
A McKenzie Friend is a layperson who may attend Court with a lay litigant for the purpose of providing assistance as required. A McKenzie Friend has no independent right to provide assistance, nor do they have any right to act as advocates or carry out the conduct of litigation. They are not entitled to be paid for their services.
The new Practice Direction, which comes into effect on 1 October 2017, sets out the guidelines of the role of a McKenzie Friend and what is permissible and what is not.
A McKenzie Friend may:
- Provide moral support for litigants.
- Take notes.
- Help with case papers –attention is drawn to provisions of Section 58 of the Solicitors Act 1954, as amended, which makes it a criminal offence for an unqualified person, as defined in the Act, to draw or prepare a document relating, inter alia, to any legal proceeding, either directly or indirectly, for or in expectation of any fee, gain or reward.
- Quietly give advice on any aspect on the conduct of the case.
A McKenzie Friend may not:
- Address the Court, make any oral submission or examine witnesses and they do not have a right of audience or a right to conduct litigation. In exceptional circumstances, the Court may permit a McKenzie Friend to address the Court, but such circumstances will be rare.
- Receive any payment for their services.
- Act as the litigants’ agent in relation to the proceedings.
- Manage litigants’ cases outside of Court, e.g. by signing Court documents.
The Court does, however, retain the power to refuse to permit such assistance from a McKenzie Friend and may do so where it is satisfied that the interests of justice and fairness do not require a litigant to receive such assistance. Where a Court permits a litigant to receive assistance, the Court may regulate the manner in which that assistance is provided. The Court reserves its rights to withdraw that permission if it is of the opinion that the administration of justice is being impeded by the McKenzie Friend.
The guidelines further provide that only one McKenzie Friend may assist a litigant in Court and if requested by the Court, the McKenzie Friend must provide his or her name, address and contact details to the Court.