McKenzie Friend or Foe?
From next month funding from the Legal Services Commission will not be available for families dealing with divorce, matrimonial finances or children matters in the vast majority of cases. It has been estimated that up to 85% of cases which currently benefit from public funding will be excluded with only cases involving domestic violence or child protection continuing to benefit.
The swingeing cuts in the legal aid budget coincide with a reduction in local authority funding to the advice sector which in turn will reduce access to wider pro bono legal services. To further compound matters HMCTS is systematically reducing the number or court staff and venues resulting in less front desk counters and restricted opening hours.
At a time when the numbers of cases are increasing and people are struggling economically, many in the legal profession believe these factors will create a perfect storm which may bring the family court system to its knees.
It is not surprising, given the high cost of private legal services, that there has been an increase in litigants in person and we are approaching the situation where acting in person will become the norm rather than the exception.
This will bring significant difficulties, not only for the litigant in person but also for the court and for the other parties involved. To an outsider family court proceedings can appear complex and intimidating. The adversarial system can create an unfriendly environment for a litigant in person and misunderstanding of the procedures can lead to uncertainty and distrust. Feelings of exclusion can be intensified by the perceived familiarity between barristers and judges and the use of unfamiliar language and turn of phrase.
To help navigate these unfamiliar waters, increasing numbers of litigants in person are turning to McKenzie Friends for assistance. McKenzie Friends are not legally qualified and are ostensibly there to offer lay advice and support; they have no right to conduct litigation or act as advocates. The Courts generally view McKenzie Friend’s in a positive light as a source of support and guidance. The right to bring a trusted friend to court is similar to the right of employees to be accompanied during disciplinary or complaint procedures. However there are several different types of McKenzie friends ranging from friends and neighbours, to volunteers, members of organisations and those who charge for their services. It is the latter which raise the most concern. While there is a clear need to lay down boundaries and provide supervision and training for all McKenzie friends, it is perhaps those who receive remuneration that should be viewed with caution as there is an increased potential for harm to the administration of justice
A recent case has come to light in which a Wife was a litigant in person with a paid McKenzie friend who was granted rights of audience. Subsequently a final hearing which should have lasted 3 days went part-heard on two occasions and took up a total of 8 days of the court’s valuable time. One of the many adverse effects of this was the trebling of the costs for the Husband, who was represented, to over £50,000.
The McKenzie friend in this instance was ill informed and badly organised. She did not have a grasp of the scope of the hearing or what the court was able to order, despite the best efforts of counsel and the Judge. Instead of narrowing the issues she attempted to broaden the case by asking the court to consider irrelevant and historic evidence dating back nearly a decade, which had already been dealt with in previous proceedings. She showed no consideration to stick to the court timetable to save time and cost for both parties and the Court. Perhaps most troublingly, she seemed ignorant of the confidential nature of the proceedings and outside of court she held herself up as a legal representative to third parties in attempts to gather evidence to which she was not entitled.
Further this particular McKenzie friend was not cheap. The Wife paid over £21,000 for her assistance during proceedings. This is a significant sum of money to spend on someone who is not legally qualified and it did not (ultimately) result in any efficiencies to be made.
Outside of family law, granting rights of audience to paid McKenzie friends is discouraged. For example the Chancery Guide states that the Chancery Division will usually follow the practice of the Family Division (summarised in Practice Note (Family Courts: Mackenzie Friends)) but different considerations may apply where the person seeking the rights of audience is acting for remuneration.
The above case study may not be typical but it highlights the pitfalls in relation to McKenzie friends and the need for litigants in person to have access to trusted legal advice.
Trusted legal advice can save time and money by identifying the relevant issues and knowing whether the court is able to provide the solution sought, the best way to approach the case and a considered view on the proportionality of costs versus the risk of not obtaining desired result. With good legal representation, the majority of cases don’t even reach court and can be resolved through mediation, negotiation and consent. For those with limited resources there should be easier methods of accessing specific pieces of advice rather than have solicitors take a case on as a whole. The new Alternative Business Structures may also have a role to play for those who can afford at least some access to legal services.
For those who simply do not have the choice it is essential to recognise that access to justice is central to the Rule of Law and that courts cannot achieve their purpose unless they are accessible by those who need to use them. However this fundamental principle should not mean that a Litigant in Person should be allowed a disproportionate amount of the courts time and resources. Judges have a vital role in case management and must clearly explain the process and define the key issues to Litigants in Person. Although some leeway must be given to those self-representing with or without a McKenzie friend, this should not be to the extent that the court turns a blind eye when the correct procedures are not followed and orders are not complied with. The danger is that in being over accommodating to the Litigant in Person, the represented party is penalised and justice is not seen to have been done. The court must perform a delicate balancing act to achieve a fair hearing.
All things considered, if you find yourself in a situation where the other party does not have legal representation, especially at a final hearing, it may be appropriate to offer them a lump sum towards legal fees. Although this may seem counterintuitive, the reality is that in the long run you may save yourself tens of thousands of pounds.
By Nicola Caffery
Image courtesy of David Castillo Dominici at FreeDigitalPhotos.net