McKenzie Friends should not be allowed to charge for their services, senior judges have proposed, in a shake-up to rules on non-lawyers who help litigants.

The Judicial Executive Board (JEB) issued a consultation on changing the guidance that has been in place since 2010, due to concern over the rise in the number of litigants in person (LiPs) and McKenzie Friends since the cuts introduced by the Legal Aid, Sentencing and Punishment of Offenders Act 2012.

Reforming the courts’ approach to McKenzie Friends, published in February, followed a judicial working group chaired by Mrs Justice Asplin, which was set up to examine the issues and make recommendations for reform.

It proposes a prohibition on fee recovery by paid McKenzie Friends in line with the practice adopted in Scotland, where lay supporters may only provide assistance, representation or the conduct of litigation if they are not in direct or indirect receipt of remuneration. 

The paper asks whether the term ‘McKenzie Friends’, which stems from a 1970s case, should be updated to something more readily understood, such as ‘court supporter’.

It also moots replacing the existing Practice Guidance with formal rules of court and a Code of Conduct that McKenzie Friends should be required to comply with to ensure that, as with legal representatives, they acknowledge a duty to the court, and a duty of confidentiality in relation to the litigation.

The JEB also recommends production of a plain language guide for LiPs and McKenzie Friends, and asks whether it should be drafted by a non-judicial body with expertise in drafting court user materials.

Welcoming the proposals, the Chairman of the Bar, Chantal-Aimée Doerries QC, said: ‘McKenzie Friends are unregulated, uninsured and mostly unqualified, and the Bar Council agrees that they should not be allowed to charge people for legal services.’

She said: ‘An unfortunate consequence of legal aid cuts is that paid McKenzie Friends, who are not regulated or insured and are rarely legally qualified, have been charging up to £90 an hour to represent people in court.’

Doerries suggested: ‘Those who instruct a paid McKenzie Friend would be better off employing a junior barrister or solicitor. This is often more cost effective and will always represent better value for money.

‘Barristers and solicitors are qualified, regulated and insured, but McKenzie Friends tick none of these boxes.’

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