Poor behaviour on the part of McKenzie Friends ‘a minority concern’

Most litigants in person were happy with their experience of paid McKenzie Friends, according to research published this week. The study commissioned by the Bar Council found that unrepresented litigants reported ‘relatively low’ costs for such services.

The research (A study of fee-charging McKenzie Friends and their work in private family law cases) was undertaken by legal academics Leanne Smith (Cardiff), Emma Hitchings (Bristol) and independent legal researcher Mark Sefton. It drew upon interviews with 20 fee-charging McKenzie Friends and 20 clients. The researchers also spent 34 days at five family courts, observed seven cases and conducted 14 linked interviews.

‘We found much that was positive about the work of paid McKenzie Friends,’ said Leanne Smith and Emma Hitchings. ‘This is the first research to explore the views of clients of McKenzie Friends and those we spoke to reported receiving a great deal of valuable support from their McKenzie Friends at a relatively low cost. We also found that many McKenzie Friends are keen to engage in relevant education and training and that many have sufficient knowledge and experience to improve the ability of litigants to manage their own cases.’

The researchers noted that the ‘business practices’ of paid McKenzie Friends needed improvement. ‘The issues to be addressed here relate more to work done outside of the court room than at court,’ they said. ‘It is clear that any future decisions about responses to the work of paid McKenzie Friends in court should be proportionate to the relatively small scale of the problem compared with the needs of litigants in person more generally within the court.’

The study characterised McKenzie Friends as falling into one or more of five categories: the business opportunist (the most common); the ‘redirected specialist’ including ‘some highly-experienced former professionals’; the good Samaritan; the family justice crusader; and the ‘rogue’.

The study reported only ‘limited evidence’ of ‘rogue’ McKenzie Friends. The study cited one hearing where the conduct of the adviser was ‘wholly inappropriate’ and ‘impacted negatively’ on the case. ‘Poor behaviour on the part of McKenzie Friends is probably a minority concern but we suggest that this area of work is particularly vulnerable to exploitative opportunists, given that there is no regulatory body, no professional code or scrutiny, and potentially no set-up costs,’ they said.

It described the business practices of McKenzie Friends as ‘mixed’. ‘Professional indemnity insurance, registration with the Information Commissioner’s Office, and use of written terms and conditions were not widespread and few had clear and robust complaints handling processes in place,’ they said. ‘However, many appear to be keen to invest in relevant professional training and development.’

Fee rates were ‘variable’ however ‘relatively low overall costs’ were common. The unrepresented litigants interviewed opted for fee-paying McKenzie Friends ‘for reasons of affordability, flexibility, shared experience and having a committed ‘ally’ assisting them in their case’. ‘Most gave very positive accounts of their experience of using a McKenzie Friend,’ the report said.

Most McKenzie Friends interviewed or observed in court ‘appeared to possess basic procedural and substantive knowledge’. ‘[It] seems likely that this would enable them to improve the ability of the average unrepresented litigant to manage their case,’ the study said. ‘A minority of the McKenzie Friends encountered did show evidence of questionable judgements or demonstrate misunderstandings related to law or procedure.’

The research found it was ‘not uncommon’ for McKenzie Friends to refer clients to lawyers, in particular direct access barristers. The researchers concluded that ‘there is enough that is concerning in relation to fee-charging McKenzie Friends to merit efforts to tackle the worst of the sector and a more detailed evaluation of their services than this study afforded would also be welcome’.

A 2014 report by the Legal Services Consumer Panel found that the risks presented by fee-charging McKenzie Friends were not great and that they ought to be accepted ‘as a legitimate feature of the evolving legal services market’.

However many lawyers remain opposed to them (as reported on LegalVoice here) and there is also resistance from the judiciary (see here). Andrew Langdon QC, chairman of the Bar Council, said that the research painted ‘a mixed picture’ of the kind of service litigants can expect. ‘It is particularly interesting that the courtroom – where the very concept of McKenzie Friends as “quiet supporters” for a litigant was born – is not primarily where those who pay them are receiving their services today,’ he commented. ‘In that sense, what we see in court represents the tip of the iceberg.’

‘The risks of McKenzie Friends being able to seek payment for representing their clients in court, despite being unqualified and offering no disciplinary process and no requirement to have insurance, are considerable and so vulnerable clients have little protection,’ Langdon continued. ‘The research suggests that the number of paid McKenzie Friends seeking judges’ permission to represent clients in court at present is smaller than many feared, and one view is that it can and should be nipped in the bud without impacting on access to justice.’

Langdon went on to say that the study needed to seen in the context of ‘the good work the traditional McKenzie Friends, who do not charge for their services and act as a support to litigants in person in our courts, provide’.

About Jon Robins

Jon is a journalist and has written about the law and justice for the national papers and specialist press for more than 15 years. Jon is a visiting journalism lecturer at Winchester University, a visiting senior fellow in access to justice at the University of Lincoln and patron of Hackney Community Law Centre. He has won the Bar Council’s legal reporter of the year award twice (2015 and 2005). Jon is editor and co-founder of LegalVoice

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