Mckenzie Friend or Foe?
In recent months we have heard more and more comments about McKenzie friends.
What is a McKenzie Friend?
With the high costs of court and the lack of legal aid more and more people feel that if they need to go to court they have little choice other than to represent themselves. Anyone involved in a family law case in a United Kingdom court is entitled to represent themselves in court (they do not need to employ the services of a solicitor or barrister).
If you represent yourself you are referred to as a litigant in person. A McKenzie friend can assist a litigant in person in a court of law in England and Wales. This person does not need to be legally qualified. There is not an automatic right to have a McKenzie friend in attendance but a Judge would only refuse to allow this with good reason. The term McKenzie Friend is related to a case in the 1970’s which established the principles.
At Green Light Mediation we would strongly advise clients to do their best to avoid court where at all possible. For financial cases if you are not able to manage the process yourself and the case concludes at a final hearing you are unlikely to have spent less that £30,000 each and fees of £60,000 plus are common. The court option is usually more stressful and takes longer than a mediated division of assets which in the case of a divorce is simply written up by the mediators and translated into a consent order to make legally binding. With children’s matters, the positions between parents polarise and conflict and resentment is often so high that effective co-parenting is nigh on impossible and it’s the children that suffer from the conflict. Having said all of the above, there will always be a small minority of cases that will need to go to court, sometimes children will suffer more without court involvement, and clearly not everyone can access tens of thousands of pounds to take a matter to court.
Representing yourself in court is not necessarily as daunting as it may sound, and at Green Light Mediation we signpost to useful information and personnel. Some people in this situation turn to the help of a McKenzie friend. It can be a good support especially if you have the help of a good McKenzie Friend to help in preparing the case beforehand and to sit along-side you in court. We emphasise the word “good” in that sentence. We also remind you that a McKenzie friend does not need any legal training whatsoever. Anyone can claim to be a McKenzie friend.
How can a McKenzie Friend help?
What a McKenzie Friend May Do:
• Provide moral support.
• Take notes (this is really useful as under stress things get forgotten or mis remembered).
• Help with case papers
• Quietly give advice on:
- points of law or procedure;
- issues that the litigant may wish to raise in court; - questions the litigant may wish to ask witnesses.
What a McKenzie Friend May Not Do:
A McKenzie Friend has no right to act on behalf of a Litigant in person. Basically, you speak for yourself. The Mckenzie friend cannot address the court, examine a witness. The only exception is if a judge has granted a “right of audience” in a particular case, but this is quite unusual.
The Bar council produced a summary report on 12th June 2017 considering the issue and implications of Mckenzie friends revealing some interesting facts. It did also hightlight
“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.”
What has in part prompted this blog is a concern for those facing financial disaster if they do not resolve a dispute and not having circa £75,000 to gamble at court to try to keep their equity of for example £160,000 in order to re-house themselves after a 20 year marriage with next to no other savings.
We recently received a call from a “representative” of a gentleman considering mediation. She demanded to know whether her client, who had “a very friendly relationship with his wife and just wanted to fairly split everything up” should come to mediation. We tried to speak to her “client” directly (whose first language was not English) but she would not allow this. She demanded to know how long the divorce would take with us from start to finish as she had been told 6 weeks by a solicitor and “if we couldn’t beat that she wouldn’t waste her time” Enquiring whether her client had started proceedings she didn’t appear to understand. Asking whether her client had petitioned, she didn’t know what a petition was (it is the first stage of divorce). We tried to explain the benefits for her client in terms of cost saving but she didn’t listen and spoke over us shouting that her client could get the whole divorce in 6 weeks for a few hundred pounds with a solicitor (we suspect she had misunderstood both the timescales and the fees completely) and just repeated “can you beat that price and time or not it’s a simple question? Her poor “client” will we suspect pay many many thousands of pounds more than he needs to, be totally shocked when the process takes many months or even years and is likely to end up without that friendly relationship with the mother of his children that he had previously managed to maintain.
We have illustrated above with a very extreme example and there are some very good, appropriately qualified and genuine McKenzie friends, no doubt meeting a need, however, proceed with caution and check their qualifications for the job is our suggestion.