By Kalvin P Chapman
Since Courts were created it has always been the preserve of lawyers who may have an audience before the King or Queen, or the King/Queen’s appointed Judges. This evolved, as did the Court system and the lawyers before it. In the UK we have barristers, who are generally available for advocacy and solicitors, who prepare the cases. The right to undertake legal services is a statutory right preserved for certain classes or for those that are authorised and certified to provide the services. For instance, barristers may now take instructions directly from clients and solicitors may have rights of audience in the higher courts. It all requires a lot of training and for the regulators to certify that these people are capable of undertaking the work.
In the case of McKenzie v McKenzie
Since legal aid has been effectively removed from civil, commercial and family law there have been an ever increasing number of people in Courts who are not represented by a barrister or a solicitor. Barristers and solicitors charge fairly sizable fees because a) the training required to be a solicitor and barrister takes a long time and costs a lot of money, so barristers and solicitors are remunerated based upon their ability and experience and 2) regulation and insurance is exceptionally expensive in England & Wales. As such, some people simply cannot afford a barrister or solicitor.
Fairly recently there has been a rise of McKenzie Friends. Some of them are professionals who charge fees for the work.
If someone professes to you that they have the skills and ability to undertake representation and advocacy on your behalf you need to consider what it is they are offering you, what it is they can offer you and what would happen if they ruin your case.
There is currently an investigation into McKenzie Friends being undertaken by the Judicial Executive Board. It has not yet reported. As such, until there are further changes to the rules, but at present the Master of the Rolls practice guidance applies
The Guidance includes the guidance that a McKenzie Friend must not:
“iii) address the court, make oral submissions or examine witnesses.”
So what happens if you have used a McKenzie Friend (or are thinking about instructing one) and they have ruined your case?
Some McKenzie Friends have insurance to cover such eventualities. All McKenzie Friends who are registered with the Society of Professional McKenzie Friends have insurance and agree to adhere to a code of practice. Their insurance ought to cover you in the event something goes wrong.
If they caused your case to be lost, then litigation may be the only answer if they do not agree to compensate you for getting it wrong. However, no matter what they term themselves as, they are not qualified solicitors or barristers. As such, a Court will hold them to a different standard than a Court would if your claim was against a solicitor or barrister. It is therefore essential that you appreciate that any claim you may have will be viewed through how a Court considers a reasonable McKenzie Friend should have acted and not how a professional solicitor or barristers would have acted in your case.
As such, you must be very clear about what your instructions were to the McKenzie Friend, consider whether the McKenzie Friend complied with your instructions, complied with what the Court ordered you to do and whether they complied with the practice guidance. Simply getting it wrong is not enough to succeed.
McKenzie Friends appear to be here to stay. Not everyone can afford a solicitor and barrister. But, the increase in sue of these people has already seen a rise of cases being lost due to simply not being experienced enough. There are McKenzie Friends out there who are better than solicitors and barristers, but there are also those out there who not only lose the case but also create mayhem whilst they lose the case.
If you had a case and instructed a McKenzie Friend, Muldoon Britton will be happy to review your case for you. It is imperative that you arrange for all communications, files, documents and court papers to be collected into a file. As noted, such cases are not as straightforward as “they got it wrong” because a McKenzie Friend is not there to win your case, they are 9according to the guidance) only there to assist you. In order for us to review your case, we need to see and review what it is that they offered to do fr you and what they actually did. You can assist us enormously by compiling all relevant emails, letters and documents together with the Court file.