A Practice Direction has been issued by the Presidents of the High Court and the Court of Appeal to clarify the position of so-called McKenzie Friends.
A McKenzie Friend is a lay person who is permitted to attend court with a lay litigant to provide assistance where required. The practice direction has clarified that lay litigants may obtain reasonable assistance from their McKenzie Friend but the McKenzie Friend has no independent right to provide assistance. They have no right to act as advocates or carry out the conduct of litigation and they have no entitlement to payment for their services.
The practice direction follows the observations made by Mr. Justice Peart in the Court of Appeal in Butler and Butler v Nelson & Co Solicitors  IECA 149. In that case an ex-solicitor was acting as a McKenzie Friend to the Plaintiff. The McKenzie Friend was no longer on record for the Plaintiff due to being struck off the Roll of Solicitors. Mr. Justice Peart was of the view that the McKenzie Friend had "overstepped the mark" in the manner in which she provided assistance to the Plaintiff. He noted that there are situations where a McKenzie Friend can become a hindrance and that it should be a "passive and limited role so as to not unreasonably interrupt the hearing". Mr. Justice Peart called for guidelines to be published on the nature and limitations of the role of McKenzie Friends; a call which has now been answered by the publication of this Practice Direction.
The Practice Direction clearly sets out the dos and don'ts for McKenzie Friends. It details that in court McKenzie Friends may:-
- Provide moral support for litigants;
- Take notes;
- Help with case papers (though attention is drawn to section 58 of the Solicitors Act 1954, 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 in expectation of any fee, gain or reward);
- Quietly give advice on any aspect of the conduct of the case.
However, McKenzie Friends may not:-
- Address the court, make oral submissions or examine witnesses. McKenzie Friends do not have a right of audience or a right to conduct litigation. In exceptional circumstances a court may permit a McKenzie Friend to address the court. 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 court, for example, by signing court documents.
Whilst litigants may receive reasonable assistance from McKenzie Friends, the court retains the power to refuse to permit such assistance. The court may do so where it is satisfied that the interests of justice and fairness do not require the litigant to receive such assistance.
Where the court permits a litigant to receive assistance from a McKenzie Friend, it may regulate the manner in which assistance is provided. It may withdraw the permission if of opinion that the administration of justice is being impeded by the McKenzie Friend. If requested by the court a McKenzie Friend must provide his or her name, address and contact details. Only one McKenzie Friend may assist a litigant in court.
The Practice Direction shall come into force on 1 October 2017.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.