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McKenzie Friends – Liable for Poor Advice at Last!

One of the issues I have written about in the past is the impact of the so called “professional” McKenzie Friend in the legal services market – particularly in family law.

The death of legal aid has meant that there has been an increase in the availability of people, without any legal training or expertise whatsoever, to market their ‘services’.

The concept of McKenzie Friend, in its truest sense, is something I would be loath to see removed. A McKenzie Friend is supposed to be someone who comes to Court with a party who is not represented, and gently assists that party in representing themselves. The McKenzie Friend is there to take notes, quietly suggest additional questions and just be strong moral support for someone who is litigating, perhaps for the first time, for themselves and could do with assistance.

Unfortunately, the ability to be a McKenzie Friend has been exploited. Those with no training, education or a professional body to regulate them, have set themselves up as professional McKenzie friends – often at a rate less than Solicitors or Barristers.

However this is very much a case of “you get what you pay for”.

Professional McKenzie friends can be (and often are) just anybody who thinks they can make money in an area in which they have no expertise.  In a very real sense, going to Court with a professional McKenzie Friend is no different than pulling a stranger from the street who suggests they can help you (whether they can or cannot).  Like a cowboy builder or plumber.

Sadly, my experience of professional McKenzie Friends is that they have universally made matters worse – not better. I appreciate there may be helpful McKenzie Friends out there and it just may be that I have never come across them.

Both the Law Society and the Judges of the High Court have been increasingly concerned about the practice of McKenzie Friends. At County Court level, Judges are being more rigorous in ensuring that McKenzie Friends (professional or otherwise) do not overstep the boundaries (though many of them routinely try).

There has, thus far, been very little “comeback” if your case is royally cocked up by a McKenzie Friend.

A very recent case in the High Court shows just how concerned the judiciary are by this practice.

Although it is a civil case, the High Court has recently handed down a decision in Wright v. Troy Lucas (the firm) and George Rusz.   In this landmark decision, the High Court has ruled that the unqualified advisor (McKenzie Friend) does, in fact, owe a duty of care to their client and in that particular case (which involved personal injuries) the High Court ordered the unqualified advisor (McKenzie Friend) to pay damages in the sum of £263,759 together with paying legal costs of £73,200.

The potential for these unqualified non expert advisors to wreak havoc in family law is magnified. In financial matters, correct advice is needed to ensure that the futures of both parties to a divorce are properly protected. In children matters, it is even more important to ensure that proper qualified advice is received. The impact on the relationship between parent and child, which should be lifelong, should not be left to “chancers” who think they know what they are doing as opposed to those who have spent several years gaining the appropriate qualifications to assist and to provide the very best of advice in difficult situations, and who will continually top up that qualification with ongoing legal education and training.

I am pleased that the High Court is now sending a very strong signal that McKenzie Friends will be liable for their poor advice.

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