In February 2016, the then Lord Chief Justice, Lord Thomas of Cwmgiedd, and the Judicial Executive Board issued a consultation entitled “Reforming the courts’ approach to McKenzie Friends”. It followed an internal report by a judicial working group and sought responses to a number of proposals in relation to McKenzie Friends, including changing their name to ‘court supporter’, replacing existing practice guidance with rules of court, introducing a Code of Conduct for them, and imposing a bar on recovery of fees.
The consultation was intended to address what were perceived as problems with the activities of McKenzie Friends, particularly those who charge fees for their services, the number of whom had increased in response to the cuts in legal aid in recent years. But two years later, nothing seems to have changed.
Traditionally, McKenzie Friends have been unqualified friends or volunteers who provide moral support for litigants in person and practical help with managing their cases. The name comes from a case in which the idea was first recognised by the courts: McKenzie v McKenzie  P 33;  3 WLR 472. But in recent years, so-called “professional” McKenzie Friends have set up business, charging fees for their services, without any requirement to be qualified, insured or be regulated.
For more information, see McKenzie Friends: a litigant’s guide on this website.
The appearance of professional McKenzie Friends has been greeted with mixed signals. On the one hand, professional lawyers— who need to be fully qualified, insured, and regulated— resent what they see as interlopers who are not subject to such requirements and who can therefore afford to undercut them. Likewise bodies such as the Law Society and Bar Council, who represent and regulate those professions, point to the risks that negligent or incompetent (or indeed fraudulent) McKenzies present to their often desperate or vulnerable clients.
On the other hand the Legal Services Board (LSB), the body that regulates the professional regulators and is supposed to promote the growth of properly regulated legal services, rather complacently suggested in a report by its Consumer Panel (2014) that McKenzies should be recognised as a ‘legitimate feature of the evolving legal services market’, but that ‘external regulation of McKenzie Friends should not be introduced’. It acknowledged that they helped meet the needs of litigants in person who could not get legal aid. (That said, some fee-charging McKenzies actually charge higher fees than the lawyers for whom they are supposed to be a cheaper substitute.)
Some McKenzies do a good job; and others are tolerated anyway because, for the overworked courts, and for the judges — who would otherwise have to do the unrepresented parties’ advocacy for them, while remaining impartial — McKenzies are ‘better than nothing’. But no one thinks the situation is ideal.
The consultation closed in June 2016 year (extended from May 2016). You can read the Transparency Project’s response here.
We also published a roundup of other responses, from the representative organisations like the Law Society and Bar Council and Family Law Bar Association, from legal regulators like the Bar Standards Board, Solicitors Regulation Authority, and the Legal Services Board, and from individual commentators like David Burrows and John Bolch.
But they were not the only ones. According to the Judiciary page where the original consultation was launched
A large number of responses were received to this consultation paper, covering a broad range of issues. The Judicial Executive Board has decided to establish a further judicial working group to review the original proposals in the consultation paper in the light of these responses. That group will report to the Board in the first instance.
That announcement is dated September 2017. It is now two years since the consultation was launched in February 2016, since when Lord Thomas CJ has moved on, to be replaced by a new Lord Chief Justice, Lord Burnett of Maldon. He is also the chair of the JEB which has set up another working group to examine the problem. The original consultation followed an earlier judicial working group and was based on its recommendations.
So there seems to be an element of ‘Groundhog Day’ about this. Will the ‘further judicial working group’ come up with a ‘further’ consultation?
While the JEB makes up its mind, problems with the status of McKenzie Friends continue. In March 2017 a new outfit, called McKenzie Friends Marketplace (MFM) was set up by a student in London with the support and encouragement of two law schools, and provoked a good deal of anxious commentary: see ICLR blog, Legal Profession: McKenzie Friendly fire
A report commissioned by the Bar Council was published in June 2017 (ie while the JEB was still sitting on responses from the 2016 consultation and before it announced the setting up a further working group). We discussed it here: Fee Paid McKenzie Friends Research.
Unless and until the judiciary comes up with a new plan, the rules governing the conduct of McKenzie in court are contained in practice guidance issued by the courts in 2010: see Practice Guidance: McKenzie Friends (Civil and Family Courts)  1 WLR 1881.
But there is also the often overlooked issue of their conduct outside court, and the effect it may have on how parties approach their cases before they even get to court, which is something Lucy Reed discusses in her Pink Tape blog: Tip of the iceberg? You don’t say… the McKenzie Friend research
Featured image: Statue of “Justice” outside the New Westminster Law Court, by Waferboard, via Flickr.