‘No case for banning fee-charging McKenzie Friends’

Divorce|May 31st 2016

There is no justification for banning fee-charging McKenzie Friends, the Legal Services Board (LSB) has claimed.

It claims a total ban on courtroom advisors who charge fees is not justified by the evidence in a newly published response to a proposal by the Judicial Executive Board (JEB).  It raises three specific objections to a proposed ban, claiming that:

*The JEB’s consultation paper does not explain why the JEB cannot manage problems caused by McKenzie Friends.

*The paper does not set out clear evidence of detriment to the public caused by the charging of fees.

*The possible impact on the public of ban has not been adequately considered.

LSB Chief Executive Neil Buckley said:

“We recognise that the justice system is currently going through a period of significant change and that this brings challenges for consumers and in particular for the Judiciary…However we are not convinced that the case has been made…”

He continued:

“We know from our 2016 individual legal needs survey that 64 per cent of consumers with a legal problem do not seek independent assistance in dealing with it. In this context, any moves to restrict consumers’ choices should be targeted and based on evidence of detriment.”

Read more here.

The Legal Services Board oversees the regulation of lawyers in England and Wales. The Judicial Executive Board is, meanwhile, a panel of senior judges who assist the Lord Chief Justice.

Photo by Jean-François Chénier via Flickr

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  1. Mehul Desai says:

    This was only our partial response to the JEB Consultation led by Mrs Justice Asplin…we made this back in April as soon as the consultation opened.

    A ‘McKenzie Friend’ (MF), in short is a legal term, generally referring to an assistant to a litigant, who for whatever reason is representing themselves, more often than not due to lack of funds to hire a Solicitor and/or Barrister to represent throughout, the MF role is provided for by an abundance of Case Law Appeals (See: McKenzie v McKenzie [1970] 3 WLR 472 where the term was coined), however the genesis of a lay person assisting a litigant in Court goes back to 1800’s (See: Collier v Hicks [1831] 2B Ad 663) and more recently supported as Statutory Instruments (SI 2005 No.176 L.18) and Practice Guidance (Lord Neuberger [2010]). Mostly, Justices, Judges, Legal Advisors and Lay Magistrates generally view McKenzie Friends as “highly beneficial” and “valuable” and following the correct approach may avoid ‘anarchy’ in the Proceedings as an objective voice of reason to reign in a litigant sometimes. Whilst currently no experience, legal knowledge or regulation is required to be a McKenzie Friend, it is a substantial advantage to have some knowledge of the procedures, how to manage difficult people in conflict, substantive law and adherence to some form of Professional Code of Conduct or voluntary Regulation.

    No doubt reform has sparked amidst the elephant in the room Legal Aid and the rise in the amount of people using McKenzie Friends against a backdrop where serious misconduct and appalling behaviour of some McKenzie Friends is prevalent (See: Re Baggaley [2015] EWHC 1496 Fam), some McKenzie Friends overstepping the mark and conducting litigation without leave (See: Re H (Children) [2012] EWCA Civ 1797), some defrauding vulnerable clients out of substantial money and triggering criminal liability (See: R v Martin Williamson [2015]) and some McKenzie Friends giving out completely wrong ‘advice’ to their Clients such that cases being held ‘totally without merit’ and a striking example calling for reform where the Client was subsequently left with a sizable £4,421 adverse wasted costs Order to repay (See: R (on the application of Laird) v SSHD EWHC [2016]), while the McKenzie Friends who ‘conducted the litigation’ when they should not have and are wholly responsible (Sabine McNeil and Belinda McKenzie) boast of this case nonsensically as a “huge victory” on their website, a victory perhaps because they themselves dodged £2,000 apportionment of the wasted costs order, and rather concerningly continue to operate and mislead clients and deceive themselves of their own legal ability, it is incredibly confusing the pair have also submitted to the current reform proposals, when it is people like them who have no doubt led to this current reform paper.

    There is of course an element pulling for reform due to protectionism on the part of Solicitors and Barristers professions who are struggling to operate post 2008 economic downturn combined with the restrictions on Legal Aid availability imposed in 2013 reducing access to justice when everyone’s convention rights are engaged and risk of being breached, so the public is looking elsewhere desperate for assistance, there is already a quasi-war brooding between the professions, as generally Solicitors are now appearing more in Court with Clients in order to keep profits within their firms, thereby eliminating Barristers, and conversely, the Barristers Direct Access scheme eliminates the need for instructing a Solicitor. Some Solicitors have further capitalised on the emerging market demand for reduced cost assistance and now offer a McKenzie Friend Service, using their own staff, for a much lower fee than a Barrister (See: Sharp, Young and Pearce Solicitors in Nottingham).

    The Bar Unit and LawWorks both seem to take on cases on a Pro Bono basis, however there is a huge shortage when comparing Demand vs. Supply of Barristers and Solicitors who are willing to take on cases for no payment, that, however is not the solution to the Legal Aid problem; However after speaking with LJ MacFarlane in an informal setting over drinks in January 2016, he expressed grave concerns with the ramifications of Legal Aid restrictions, this is at the Court of Appeal level, where only a limited number of cases actually reach, however he has confirmed that there has been a steady rise in Pro Bono Barristers appearing in the Court of Appeal (Family Division) since 2013, which is a positive. The vast majority of cases will never see the inside of the Court of Appeal and will be disposed with at Magistrates or County Court level and ‘leave’ denied creating an additional hurdle for a litigant. Most self representing litigants wouldn’t even know if they had a case worthy of success in the Court of Appeal even if it was glaringly obvious nor be able to present the case clearly on paper, this is evidenced by the substantially low % of cases won at appeal by litigants acting in person vs. those using Counsel. In February 2016, Lord Dyson, Master of the Rolls (Most Senior Civil Judge) announced he will be leaving, publicly announcing his discontent over Legal Aid situation, put simply, “winnable cases were being lost”, no doubt a political statement aimed at Secretary of State for Justice, Michael Gove.

    With an underlying policy imperative to protect the public from harm resulting from some of the concerns regarding some McKenzie Friends, rightly so, currently the Judiciary has an open working group consultation led by Mrs Justice Asplin, considering reform regarding the use of McKenzie Friends (See: Reform Proposals February 2016), there are various proposals advanced; the consultation opened on 25th February 2016 and deadline has been extended from 19th May 2016 to 9th June 2016. the reform proposals seem thought out, some of the key recommendations are to: (1) replace the term ‘McKenzie Friend’ with ‘Court Supporter’, (2) introducing a threshold test for ‘rights of audience’ (See: s. 27 and 28 Legal Services Act 1990) , (3) giving the Court clearer powers to ban bad McKenzie Friends, (4) greater clarity on the scope of the role, (5) ensure MF undertake an overriding duty to the Court, (6) provide a facilitation role unless Court gives leave to do more, (7) provide a CV to the Court, (8) agree to abide by the rules of Court and lastly (8) prohibition on ‘fee charging’ including expenses. It is this latter point that is contentious.

    Some proposals seem very appropriate and reasoned in line with our beliefs, the two most questionable ones, firstly that fee charging for expenses should be prohibited, this is a question of human common sense and a wholly disproportionate unreasonable measure, which effectively would almost be a measure having the equivalent effect of precluding nearly everyone from assisting a litigant in person when Legal Aid is not available or Social disadvantage through low means e.g. if one incurs from attending Court £10 for fuel, £5 for parking and £5 for printer ink, once a week, how many people would be financially able to be altruistic and assist people and absorb the cumulative loss. Notwithstanding this last point being realised by the ‘off chance’, which arguably would be open to a proportionality convention rights based challenge (ECHR Article 6); we plan to obtain Charitable status in late 2016, positioned as serving the public good, enabling access to grants and funding so we can continue work to plug the contentious ‘void’ created by ongoing lack of Legal Aid in private law disputes. Secondly, the term ‘Court Supporter’, seems unnecessarily obscure because it carries with it the connotation that the McKenzie Friend is working for the Court alone, it would be much preferable to leave whatever label is chosen neutral and define the role as having an overriding duty to the Court and achieve the same effect, when you compare the title of Solicitor or Barrister, they do not have that connotation as the title is neutral, this assures public that the person is working for them and not the Court alone, perhaps something more suitable would be to leave the label as it is and is entrenched in substantial amount of case law and well known in the public already, alternatively the term ‘Lay Legal Supporter’ would be more neutral if re-branding is deemed necessary to achieve greater clarity.

    We have also seen post-2013 Legal Aid changes ground level impact firsthand, seen frightening rise in statistics of the number of people attempting to get Non-Molestation Orders (without merit) and also using the Local Authority to make allegations of Child Abuse (without merit), falsify Domestic Violence claims (which must enrage true victims of DV), all presumably efforts in order to secure Legal Aid, this wastes taxpayer money from which budgets are crafted, of course there could be other motivations behind this behaviour such as ‘the selfish parents charter’, ‘implacable hostility’ or genuine ‘anxiety’. Luckily for some DV victims and Practitioners there has been a sigh of relief (See: R (Rights of Women) v The Lord Chancellor and Secretary of State for Justice [2016] EWCA 91).

    Another phenomena we have seen emerging in private Court cases, is the rise of ‘internet forum advice’, one only has to visit certain sites to read the highly questionable and at times absurd “advice” given to the unsuspecting public by random people, some who claim to be highly experienced McKenzie Friends yet have no idea what they are doing over issues of Parental Responsibility, Finance or Child Arrangement Orders, there is zero accountability on the internet (See: Mumsnet and Fathers4Justice forums), some posts even suggest ideas of how to obtain Legal Aid, by encouraging and assisting litigants to make false claims of DV and Abuse by suggesting ways of manufacturing incidents and invoking interventions. This plainly needs to be addressed by the law which is falling behind, as we have seen, cases are ending up in Court arena unnecessarily or returning back within a short time as a direct result, quite often where a person acts on the “bad advice”, later realising they have made a total legal mess of the case and their only defence is to admit to acting on “bad advice” in good faith to rescue the case, and could risk contempt due to an admission of discussing private cases in an open online forum (See: Social Media Evidence in Family Law: What can be used and its Probabative value) and (See: How Facebook ruined my life).

    With Legal Aid, there is scope to obtain ‘exceptional case funding’ (See: Section 10; Legal Aid, Sentencing and Punishment of Offenders Act 2012), in Children Act 1989 cases, however the number of cases where this is awarded is not even worth mentioning, a drop in the ocean. In 2014, Sir Munby’s activistic efforts are seen when he tried HMCTS as a possible way of funding representation (See: Q v Q [2014] EWFC 7). Eventually, perhaps through Judicial pressure from the President, the Legal Aid Agency changed its mind and granted the father’s application for exceptional funding under s.10 of LASPO. A similar thing happened in Re D (Non-Availability of Legal Aid) [2014] EWFC 39. Sir Munby directed a further hearing to discuss various ways in which the necessary representation could be paid for (e.g by HMCTS or the Local Authority or the Legal Aid Agency through the child’s certificate) but the Legal Aid Agency changed its mind and granted legal aid to the parents.HHJ Bellamy actually put Sir Munby’s suggestion into effect (See: Re K and H [2015] EWFC 1) and directed HMCTS to pay for legal representation that he regarded as necessary. However, the Lord Chancellor appealed and the Court of Appeal rejected Sir Munby’s arguments in Q v Q. The Cour of Appeal has held (See: Re K and H [2015] EWCA Civ 543) that there is ‘…no legal basis on which such an order can be made’. A recent ruling regarding the illegality of exceptional funding non-availability has been decided in the favour of the Lord Chancellor, narrowing the scope further of ECF (See: The Director of Legal Aid Casework & Anor v IS [2016] EWCA Civ 464).

    The Government plainly holds some blame here for the social epidemic rise of the bad McKenzie Friend and “fee charging”, resulting in reform proposals as a result of Legal Aid restrictions, the initial Guidance was crafted in 2010 by Lord Neuberger who is President of the Supreme Court, but the time was Master of the Rolls and in the last 6 years a lot has changed in Social trends, Policy and Law. The Judiciary has setup Public Support Units (PSU) in some Courts to assist, however after speaking with them many times, the service is to provide “a cup of tea” and “emotional support”, the two things least helpful to a litigant who doesn’t understand the legal system, which begs the question whether the setup is legitimately plugging a ‘gap’ or achieves something meaningful, however, the Unit in the Court of Appeal is commendable despite being overloaded.

    It is however ‘high time’ that more clarity is given to the public on the role of a McKenzie Friend and stricter form of controls (and sanctions) are imposed on those who charge for the services offered way over expenses, in it purely for the money. Banning McKenzie Friends who: provide a disastrous service and charge fees in excess of £70 to assist fill in a form taking less than half hour, over £350 to attend a 15 minute hearing, those with an axe to grind with the ‘system’ from self righteous Activist groups that encourage a litigant to act in an inappropriate way by effectively using the litigant as a puppet, ruining what would otherwise be a perfectly good case; those boasting rather implausibly that they have handled over 800 cases at all Court levels (one claiming to have handled 1,200 cases with “great success” in the Court of Appeal, however I cannot identify a single Judgment with their name), one incredulously alleging to have handled over 2,900 cases and been “commended” by the Supreme Court Law Lords (as expected – Judgments are absent from all Legal databases and the same ‘legal expert’ frighteningly has also spent a significant period in Prison and prosecuted for multiple Rape, GBH and other Violence charges and also disclaims all responsibility if a Client acts on his “advice” and seriously damages their case), those immorally taking advantage of unsuspecting vulnerable members of the public while claiming to provide a professional ‘expert’ service worthy of absurd charges to totally exploit the ‘naive’ & ‘vulnerable’, those that charge in excess of £600 to attend a one day hearing, those that charge £1000+ for a leave hearing and those that use exploitative clauses such as refusal to refund monies paid e.g. in any event that a hearing date is changed. We have submitted our views to the Ministry of Justice Consultation that some form of regulation would certainly be appropriate to provide protection to the public while giving them some kind of indication whether through regulation or professional membership that McKenzie Friends can be held accountable for improper conduct, the ability to charge fees; where the line should be drawn would be better defined in rules of Court to avoid any ambiguity.

    If a complete ban on all remuneration is imposed, those most disadvantaged will be the primary victims, preclude children from having a relationship with both parents contrary to Parliaments intention, breaches of human rights, miscarriages of justice and there will be a very real risk that an underground market will emerge with secret payment agreements being made or novel ways to circumvent the remuneration clause, with litigants finding themselves in contempt or further issues spiraling out, this particular aspect of the proposal needs much more consideration.

    The Solution isn’t quite clear-cut regarding reform of McKenzie Friends as there is certainly more variables in play.

    We eagerly await the overall outcome of the consultation.

  2. Millicent says:

    There are good and bad McKenzie Friends as there are good and bad Solicitors & Barristers.

    Regulation hardly helps in the many cases where clients genuinely feel hard done by, by their own lawyers and at extortionate costs at times.

  3. JMullard says:

    Unfortunately there are some unscrupulous MFs operating in the system and preying on the vulnerable. They use social media as an acquisition channel, have no advertising costs and its easy money!

    MF’s can provide valuable assistance with paperwork preparation – however do check credentials and background!

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