This is compounded by the fact that the reason for going to court in the first place, whether as a defendant or claimant, is itself likely to be upsetting, serious and have a direct impact on your life or livelihood. It is not too difficult to understand why litigants seek whatever assistance they can get when going to court. It can be difficult, though, to make sure that litigants have access to the right type of assistance to ensure their legal issues are properly addressed and resolved.
We all know about the devastating impact of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO). LASPO has decimated the availability of publicly funded legal advice and representation in areas of law where litigants are at their most vulnerable, particularly in family and housing law. This has, inevitably, seen a reported increase in the number of individuals going to court without a lawyer.
It is perhaps as equally inevitable that individuals, namely fee-paid McKenzie Friends, have sought to fill the vacuum that has been left by the fundamental shift in legal aid funding. Not a great deal is known about fee-paid McKenzie Friends, how many there are in England and Wales, what types of services they are offering, what kind of experience and expertise they have, whether they are insured, or how they impact the administration of justice or the outcome of their clients’ cases. They are, however, sufficiently common that the Lord Chief Justice of England and Wales has published a consultation on ‘Reforming the courts’ approach to McKenzie Friends’ (closes 19 May 2016).
The consultation rightly points out that the court’s jurisdiction to permit a litigant-in-person reasonable assistance has been recognised at least since the decision of Collier v Hicks (1831) 2 B&Ad 663. There is a common law right to receive reasonable assistance from any third party in proceedings that take place in open court, while for cases held in private the court has discretion to allow a third party to provide a litigant in person with reasonable assistance. Third parties who provide assistance to litigants-in-person have come to be known as McKenzie Friends (following the decision in McKenzie v McKenzie  p 33, where Mr McKenzie was wrongfully denied assistance from a third party in his divorce proceedings).
Bar Council view
The Bar Council considers that the support offered by individuals who act as a McKenzie Friend in a voluntary capacity, who provide emotional and practical support for litigants, take notes and generally assist with case papers and organisation, have an important function in the justice system. This is particularly so for litigants who are unable to afford paid legal assistance and even more so in light of the continuing impact of austerity measures.
But the removal of legal aid from critical areas of the civil justice system has opened a market to individuals whose involvement might not always serve the best interests of litigants, unlike barristers and solicitors who are professionally obliged to act in their clients’ best interests. The Bar Council is concerned about McKenzie Friends offering paid-for services in a ‘professional’ capacity, particularly where they seek to exercise a right of audience. There is potential for unqualified, uninsured and unregulated fee-paid McKenzie Friends to have a negative impact on individual litigants as well as the administration of justice. The recent decision of Re Baggaley  EWHC 1496 (Fam) provides an example of how this can play out in the family courts. Anecdotally at least, concerns about fee-paid McKenzie Friends are becoming more common throughout England and Wales.
This does not mean that the Bar Council supports the formal regulation of fee-paid McKenzie Friends. Our current view is that there is already a sufficient variety of regulated legal professionals, including barristers, who are able to meet market demand in flexible and accessible ways and who provide qualified, regulated and insured legal services. Adding another layer of regulated professionals will not be in the interests of the client or the court, and will not, therefore be in the public interest or the interests of justice. It will also create unnecessary confusion in an already highly competitive market as to who can do what, what qualifications are required and what standards are expected.
Consequently, we are also inclined to agree with the proposal put forward in the judicial consultation on McKenzie Friends that remunerated McKenzie Friends should not generally be permitted to exercise rights of audience. The legal services regulated under the Legal Services Act 2007 (LSA 2007) are best provided by individuals and organisations that are qualified, subject to professional regulation and hold professional indemnity insurance.
Benefits of barristers
Members of the Bar hold relevant legal qualifications, are subject to regulation by the Bar Standards Board and hold professional indemnity insurance. Members of the public, including businesses and corporations, are able to instruct members of the Bar directly – they do not need to use a solicitor or other intermediary to do so. Members of the Bar can be instructed for as much or as little work as the litigant requires, meaning they can be an attractive option for litigants who are able to pay for some professional legal assistance.
Having launched the Direct Access Portal in 2015, the Bar Council is continuing to work to make sure that members of the public understand that they can seek advice and assistance from barristers without a professional or lay intermediary. We have produced and publicised videos explaining how public access barristers can help small businesses and attended the Federation of Small Businesses 2016 Conference. The Direct Access Portal also has its own Twitter account and the Bar Council has held sessions for the Bar on ‘top tips’ on running a successful public access practice, including information about managing client expectations, the importance of making legal costs affordable for clients, and how and where to find new clients.
However, recognising that little is currently known about the support offered by fee-paid McKenzie Friends, the Bar Council is also working to ensure there is a better understanding of their role, particularly in the family justice system. We have commissioned field research, to be undertaken by an independent team led by Dr Leanne Smith from Cardiff University, to look at the role of fee-paid McKenzie Friends in the family courts. This field work will look at the type of work undertaken by fee-paid McKenzie Friends as well as how fee-paid McKenzie Friends handle court work. The research will also look at the experience of clients of McKenzie Friends, why they instructed a fee-paid McKenzie Friend and the nature of the service they received.
We hope this research, due to report in early 2017, will add to the growing body of knowledge about litigants-in-person, how individuals access legal assistance and the impact of different types of legal assistance on the administration of justice. In particular, we hope that the research will begin to address some knowledge gaps by specifically looking at the experience of clients of McKenzie Friends and the role of McKenzie Friends in court, both of which were not covered by the Legal Services Consumer Panel (LSCP) report on Fee-charging McKenzie Friends. We hope the independently conducted research may contribute to properly informed responses to the changing legal services market.
Other non-authorised advocates
McKenzie Friends, though, are not the only non-authorised individuals increasingly exercising rights of audience. The Bar Council has published information for unregistered barristers who may be seeking to exercise rights of audience where they may not be entitled to do so. While the position of McKenzie Friends seeking rights of audience is clear, and any unregistered barristers providing services (paid or otherwise) as McKenzie Friends must seek the court’s permission to exercise a right of audience, the position of solicitor’s agents is not so obvious. This is a serious concern in light of the fact that s 14 of LSA 2007 provides that it is a criminal offence for a person to carry on a reserved legal activity, such as exercising a right of audience, unless they are entitled to do so.
Solicitor’s agents are individuals who seek to exercise rights of audience as provided by the exemption in para 1(7) of Sch 3 of LSA 2007. This exemption applies (in outline) where an individual assists an ‘authorised person’ in the conduct of litigation in certain types of hearings that are held ‘in chambers’. There may be many occasions on which rights of audience are exercised pursuant to this exemption perfectly properly. Unfortunately, however, the absence of definitive judicial interpretation of this exemption has left the boundaries of its nature, scope and application uncertain. The Bar Council and Personal Injury Bar Association have made all presiding judges on the Circuits aware of our information document and we encourage all barristers to make sure they know who can exercise rights of audience and under what circumstances it is permitted. You can read the information document on the Bar Council website.
Ongoing changes to the legal services market, from the removal of legal aid to increases to court fees, continue to have a considerable impact on access to justice for litigants. It is therefore all the more important that litigants are provided with the tools that allow them to be advised and represented by regulated, qualified and insured legal professionals. We believe that providing and promoting a platform for the Bar to assist the public to access a barrister directly is one way to help ensure this is the case. We also hope that the independent research led by Cardiff University will provide us with information that will help ensure that informed decisions are made about how to best respond to the changing legal services market. ●
Contributor Sarah-Jane Bennett, head of policy: legal affairs, practice and ethics at the Bar Council