If you have been around the county courts over the last decade or so, either as a seasoned barrister or new junior barrister you may have come across a different breed of legal professional called The McKenzie Friend.

By Cynthia McFarlane, Barrister, The Barrister Group

In my writing I am often asked by lay persons from the UK or internationally where this term derives from.  If you have never had the fortune to meet a McKenzie Friend at court or if you need a reminder, the term derives from the English divorce case, McKenzie v McKenzie in 1969.

Mr. McKenzie, who was petitioning for divorce, had been legally aided but this was withdrawn before the case went to court and he lost contact with his solicitors.

His solicitors sent the case to an Australian barrister in London, Mr. Ian Hanger, whose legal qualifications were from Australia which meant he was not permitted to act as a barrister in England. Mr. Hanger hoped to sit with his client to prompt him, take notes and suggest questions in cross-examination, providing quiet assistance to a man representing himself.

The trial judge ordered Mr. Hanger not to take any active part in the case except to advise during adjournments.

In 2010 written guidance was introduced to assist civil and family cases. The guidance was published at https://www.judiciary.uk/guidance-and-resources/mckenzie-friends  in 2012 and applies to civil and family proceedings in the Court of Appeal (Civil Division), the High Court of Justice, the County Courts and the Family Proceedings Court in the Magistrates’ Courts. It is issued as guidance (not as a Practice Direction) by the Master of the Rolls, as Head of Civil Justice, and the President of the Family Division, as Head of Family Justice. It is intended to remind courts and litigants of the principles set out in the authorities and supersedes the guidance contained in Practice Note (Family Courts: McKenzie Friends) (No 2) [2008] 1 WLR 2757, which is now withdrawn. It is issued in light of the increase in litigants-in-person (litigants) in all levels of the civil and family courts.

The role of the McKenzie Friend has extended over the years in England and Wales aswell as to other common law jurisdictions and I appreciate that there are nuances between the approaches taken by a number of different countries internationally who recognise this role.

Fear-mongering

Prior to writing this article every article which I came across either written by the media or by a legal professional, such as a solicitor was highly negative in tone suggesting that the traditional legal profession advocated the demise of the McKenzie Friend and either portrayed them as threatening the legal system or presenting them as a challenge to the overarching legal principles.

On any balanced view typically the McKenzie Friends that assist their clients at court may have experience of the court process but are not qualified to handle legal matters.  This does present a quandary for the courts in how to manage this role.  However, McKenzie Friends also include trained legal professionals such as solicitors and so they cannot all be tarred with the same brush.  The same way there are good and bad barristers, there are good and bad McKenzie Friends.

It is all too easy for our profession to distance ourselves from McKenzie Friends with a them versus us attitude rather than pondering deeper as to why some clients choose to use McKenzie Friends rather than lawyers.  At first blush it may appear that this is simply down to a decision of cost.  Again, this is too simple an answer.  The reality is that although we are as a society facing the challenges of a cost of living crisis we are also witness to a world where technology has evolved and clients are becoming savvier when tasked with choosing their legal representation.  These days, often the use of a McKenzie Friend is a tactical decision and therefore part of their strategy.  In addition, the McKenzie Friend relationship is often built upon trust or a common understanding, something which lay persons may find displaced, lacking or absent in the lawyer – client relationship.

If we as a profession are short-sighted when it comes to the role of the McKenzie Friend we are also limiting the commercial advantage that we could gain by embracing them as an opportunity and this is one of the considerations that I have in mind when I work with legal professionals to implement my trademarked legal framework in their own practices.  In a similar way to the way we have historically liaised with solicitors on cases in preparation for our court day and to meet our client’s expectations, the same can be said for liaising with the McKenzie Friend.

The unmitigated dangers

 The real problem lies in the fact that there are those McKenzie Friends who have evolved from not only assisting clients but are now representing their clients.  A reasonable response may be to simply ignore those who practice in this way but again this would be ignoring the white elephant in the room, which is very much likely to build up to a bigger problem for the court system later on.  In my opinion this is where we currently are in the UK.  There are countless McKenzie Friends building on this role to the satisfaction of their clients and themselves.  The fact that the court ignores their role means that they continue to be unregulated causing greater problems for the future of the court system, decades on.

It is not hard to envisage a scenario where the McKenzie Friend’s assistance falls into providing some legal advice, speaking out on behalf of the individual they are assisting or holding themselves out as law firms.  For many self-represented litigants who choose McKenzie Friends they do not know where the lawyer’s work ends and the McKenzie Friends begins, resulting in blurred lines.  It is because of the lacuna within the court system that there is not any regulation, a lack of ethical code meaning that poor practices or mismanagement can thrive and self-represented litigants suffer.

Bridging the gap through collaboration rather than competition

 Scheduling a client conference to prepare for court with the McKenzie Friend present and fully part of that conversation, involved in the strategy or approach to be taken in your case.

• Agreeing to share the workload in terms of court preparation and clearly communicating the boundaries as to the work you are willing to do, such as the McKenzie Friend assisting the client in drafting the witness statement and the barrister drafting the position statement.
• The McKenzie Friend may be better placed to deal with more administrative or preliminary stages of the case allowing you the opportunity to handle the more substantive hearings.
• The client may feel more ready to share their views with the McKenzie Friend that they have already built a relationship with and so the McKenzie Friend may serve as a useful intermediary relaying important information and filtering out less important information which does not serve the client.
• The knowledge of the McKenzie Friend (straddling between the lay client and the barrister) may mean that they have a novel approach or bring a fresh or differing perspective to the case.
• They may have local knowledge of the judge, the court, relevant charities or organisations given the frequency that they are involved in such cases, which may result in that well-needed edge or upper-hand when pitted against your opponent.

Feeling heard

 In truth, the reality is that we are all striving for the same thing, for our client’s voice to be heard, whether we are assisting or representing.

Today, the lay client will go to lengths to ensure that their voice is heard whether that is through a barrister, solicitor, McKenzie Friend or even by completely representing themselves without any assistance at all.

In my opinion, in this day and age, rather than fighting against the change or fearing what different professionals may bring, we need to ensure that the legal system does not fall further into disrepair and collaborate rather than compete against each other.

I am sure that we will all collect further invaluable skills to build upon in our own professions along the way!

If you are reading this and would like to learn more about how you are able to leverage McKenzie Friends through collaboration rather than competition so that it is a winning situation for all – and most importantly the client of course, please feel free to contact me at [email protected] to continue the conversation.

Cynthia McFarlane, The Barrister Group