Judiciary consults on reforms to approach of courts to McKenzie Friends

The Judicial Executive Board (JEB) is to consult on reforms to the approach courts take to ‘McKenzie Friends’, including the introduction of a code of conduct for those carrying out the role.

The consultation, which can be viewed here, follows a rise in recent years in the number of McKenzie Friends and litigants in person (LiPs).

The existing Practice Guidance on McKenzie Friends for the civil and family courts was issued in 2010.

However the JEB said it was concerned that this guidance needed to be updated to address issues and developments that had arisen since then.

It was also concerned that in order to do so effectively it might be necessary to replace the Guidance with rules of court.

The consultation follows a report of a judicial working group, chaired by Mrs Justice Asplin.

The consultation paper, which includes an indicative set of draft Civil Procedure Rules, sets out the current position in law and subsequent developments. It poses questions in a number of areas:

• Terminology: the paper asks whether the term McKenzie Friends should be updated to something that is more readily understood, such as ‘Court Supporter’. The original term stems from a divorce case in the 1970s in which an Australian barrister, without rights of audience in England Wales, sought to represent a party.
• Developing rules of court: the paper discusses whether the existing Practice Guidance should be replaced with formal rules of court. “The courts’ approach to this issue is grounded in case law, and codification into rules would enable reforms to be made, and allow differences for different types of proceedings (for example, between civil and family cases). Codification would also provide greater clarity and consistency in the approach courts take to McKenzie Friends.”
• Providing notice: the paper suggests reforms to help LiPs understand what roles McKenzie Friends can play and any limitations on what they can do. “LiPs would need to inform courts in advance if they intended to use a McKenzie Friend, and would give the courts information on that lay supporter.”
• Code of Conduct: the paper proposes that the standard notice process includes a Code of Conduct for McKenzie Friends that they would be required to agree to comply with. “This would ensure that, as with legal representatives, they would acknowledge a duty to the court, and a duty of confidentiality in relation to the litigation.”
• Plain language: the JEB believes that whatever reforms take, a plain language guide for both LiPs and McKenzie Friends should be produced. It also raises the question whether a guide should be drafted by a non-judicial body with expertise in drafting court user materials.
• Prohibition on fee recovery: the JEB consultation paper proposes that there should be 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 JEB’s intention is to protect the public interest and vulnerable litigants from unregulated and uninsured individuals seeking to carry out reserved legal activities. This approach is also in line with Parliament’s intention that rights of audience (the ability to appear and present a case in court) and to conduct litigation should be strictly regulated.” 

The JEB has invited comments on these issues and generally to be submitted by 19 May 2016. Comments can be sent to This email address is being protected from spambots. You need JavaScript enabled to view it..