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Benefits of McKenzie Friends outweigh risks: Legal Services Consumer Panel

The access to justice benefits of having fee-charging Mckenzie Friends outweigh the risks, a report by the Legal Services Consumer Panel (LSCP) has said.

The LSCP, which provides independent advice to the Legal Services Board, said there had been some individual cases which had a serious impact on people. However, its research had found no evidence of widespread detriment.

The panel said it therefore ruled out statutory regulation at this stage and called instead for the sector “to develop a credible system of self-regulation to earn greater trust from judges, the legal profession and the general public alike”.

The LSCP made 15 recommendations in its report. These were that:

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  1. Fee-charging McKenzie Friends should be recognised as a legitimate feature of the evolving legal services market.
  2. The training course on litigants in person which the Judicial College has been asked to consider should include content on McKenzie Friends.
  3. Guidance notes issued by professional bodies on litigants in person should include content on McKenzie Friends.
  4. The Practice Guidance (issued by the senior judiciary) should be reviewed and amended to portray McKenzie Friends in a more positive way.
  5. Education and advice directed towards litigants in person should set out the benefits of using a McKenzie Friend as one form of support available to them.
  6. A white label consumer guide on McKenzie friends should be produced, with the assistance of Law for Life, for use by the advice sector.
  7. More details of judgments, which highlight where the rights of McKenzie Friends who have behaved improperly have been restricted by the use of Civil Restraint Orders, should be routinely published on Gov.uk.
  8. The Legal Services Board should review case law on the definition of the conduct of litigation and publish a document which seeks to clarify its meaning. Depending on the findings of this research, the Board should consider recommending to the Law Commission that the law in this area be reviewed.
  9. The Legal Services Board should consider the findings of this report as part of its ongoing work on simplifying legal services regulation.
  10. Automatic rights of audience should not be granted to McKenzie Friends.
  11. The Practice Guidance should be updated to take account of recent case law. “In an ideal world, the Panel would like judges to have a wide discretion to grant a right of audience when this would be in the interests of justice.”
  12. There should be consistent use of CVs, notices or other simple tools that can help assess the credentials of McKenzie Friends when considering applications for a right of audience to be granted.
  13. External regulation of McKenzie Friends should not be introduced.
  14. Fee-charging McKenzie Friends should form a recognised trade association.
  15. The Civil Justice Council's draft code of practice should be updated to include measures targeted at the unfair commercial practices described in the LSCP's report.

Elisabeth Davies, Chair of the Legal Services Consumer Panel, said: “While there are legitimate concerns about the quality and behaviour of some McKenzie Friends, they can provide valuable support which improves access to justice and helps the courts to get through their busy workload.

“Despite McKenzie Friends doing more good than harm, conservative attitudes mean they often encounter resistance in court and barely get a mention in advice guides. There needs to be a culture shift which recognises the reality of the modern legal services market: where legal aid is withdrawn and lawyers’ fees are out of reach, alternative providers offering different services will inevitably emerge to fill the gap. Greater acceptance of McKenzie Friends is one of many adjustments the family courts will need to make in a world where litigants in person are becoming the norm.”

She added: “Fee-charging McKenzie Friends must also do their bit to earn greater recognition. This should start with forming a credible trade association to address the concerns about poor courtroom and commercial practices highlighted in our report. Going to court isn’t easy, leaving people open to exploitation that can cause a lot of damage. By raising standards and marginalising the few rogue operators, McKenzie Friends will build public trust and at the same time help themselves.”

The LSCP said there had been reports of increasing numbers of fee-charging McKenzie Friends, particularly in family cases following changes to legal aid eligibility in April 2013. Some had expanded their role by providing legal advice and seeking a right of audience, it added.

A copy of the report can be viewed here.

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