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McKenzie Friend or Foe?


Dec 17, 2018

The term ‘McKenzie Friend’ was coined in the seminal Court of Appeal case McKenzie v McKenzie, where an Australian Barrister was permitted to assist a litigant in person (“LIP”) to conduct their case in court1.   The Court underscored that the role of a McKenzie Friend was to, “prompt and make suggestions to the husband in the conduct of his case.”2   The judgement was applauded for increasing access to justice for LIPs and promoting greater consumer choice. 

However, the status of the McKenzie Friend industry continues to be challenged amidst erroneous advice leading to the breach of an English Court Order.

In a recent Judgement of the High Court of Ireland, an English couple breached an interim care order acting on erroneous advice from a McKenzie Friend. The Irish Court alluded to the fact that advice from a McKenzie Friend was no substitute for advice from professional legal advisors, and the resultant actions were a “reckless disregard” for English Court Orders.  This case, like many others, exposes the perils of an unregulated McKenzie Friend industry; showcasing the potential for poor-quality advice and lack of insurance cover3.   This begs the question: are McKenzie Friends really your friend or foe?

In 2016 the Lord Chief Justice of England and Wales published a consultation paper detailing reforms and practice guidance for McKenzie Friends4.  Amongst other suggestions, the predominant proposals were banning fee recovery, recommending that all McKenzie Friends sign up to a code of conduct and that rules governing the courts’ approach towards McKenzie Friends be codified.5

Notwithstanding the growing pressures for regulation, especially for curtailing the practice of fee-charging McKenzie friends, the HM Judiciary confirmed that they are no closer to proposing any regulatory regime.

In Hong Kong, “any person may begin and carry on proceedings in the High Court by a solicitor or in person.”6  Whether it be due to an inability to afford qualified representation or simply a natural consequence of restricted legal aid, the contemporary legal backdrop is characterised by an un-paralleled increase in LIPs7.  An unforeseen, yet certainly not unpredictable, by-product of the rise of LIPs is the increased use of McKenzie Friends in Hong Kong.

The ‘McKenzie Friend’ originally envisaged by Davies L.J. in the 1970s is an incident of the past, and the role has now evolved to pave the way for a new species of quasi- solicitors. The increase of LIPs coupled with an unregulated and growing McKenzie Friend industry presents a situation ripe for review.
 

 

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1 [1970] 3 All ER 1034 (CA).
2 Ibid, Davies L.J.
3 [2018] IEHC 514.
4 Reforming the courts’ approach to McKenzie Friends, A Consultation.
5 Ibid.
6 The Rules of the High Court, Order 5 r.6.
7 Principles and Practice of Civil Procedure in Hong Kong, Chapter 3- Parties and Joinder.

 

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