PI Brief Update

Reforming the Courts' Approach to Mckenzie Friends - Kurt Rowe, Head of the CPR & Protocols Sector Focus Team at FOIL

27/07/16. The recent conclusion of the Judicial Executive Board’s consultation on Reforming the Courts’ Approach to McKenzie Friends has put the spotlight firmly on the role of these individuals in court proceedings as well as the need for reform.

For nearly 50 years, litigants in person have turned to McKenzie Friends to stand alongside them in court and speak on their behalf. These individuals do not need to hold legal qualifications and are increasingly charging a fee for their assistance.

The McKenzie Friend has evolved from an informal law friend into a semi-professional paid service, and this troubling evolution needs to be addressed, especially with regards to reserved activities like rights of audience and the right to conduct litigation.

Whilst a balance needs to be struck and any process where litigants receive assistance should be welcomed, there is a danger that unqualified McKenzie Friends could effectively become pseudo lawyers. It is simply not appropriate for unqualified and unregulated representatives to take on a semi-professional role, however well-meaning, making appearances in courts on a regular basis. FOIL therefore welcomes the tests seeking to address this issue as set out in the JEB’s draft rules.

The issue came to a head earlier this year, when the Society of Professional McKenzie Friends (SPMF) revealed in its submission to a Competition and Markets Authority (CMA) survey that members are choosing to act as McKenzie Friends having previously worked as solicitors (or are actually still on the Roll). In effect, they are opting to pursue the less informal route to circumvent SRA regulation, even if they are legally qualified. It is not much of a leap to suggest that we may see situations where those that are legally qualified and who have suffered regulatory sanctions on their ability to practice, continue to practise through the guise of a McKenzie Friend.

FOIL supports the proposed prohibition on fee-recovery. Permitting remuneration would inevitably encourage more and more interest in McKenzie Friends, potentially with no legal qualifications, no regulatory oversight, and no professional indemnity cover, prompting serious issues around consumer protection.

There is further cause for concern with the continued rise of Claims Management Companies (CMCs). It is well established that the claims management industry is agile and innovative, adept at exploiting new business opportunities. It is not difficult to imagine that amendments to the Small Claims Track put forward in the Autumn Statement will see more CMCs attempting to handle personal injury claims up to £5,000 without the onward referral to a solicitor. In turn, representatives of CMCs could assume the role of McKenzie Friend. This must be addressed in any rules that emerge, as well as through greater regulation, and FOIL welcomes the further consideration of a regulatory framework for CMCs from the Financial Conduct Authority.

Indeed, in the event that the small claims track is increased, unqualified representatives will undoubtedly become a more common feature of the civil justice regime. It is not just McKenzie Friends that are a concern. FOIL has called for the statutory rules on representation in small claims to be considered alongside McKenzie Friends, to ensure that all lay representatives come within the new rules. The interests of those using the courts must remain protected.

This is not to say that McKenzie Friends are not a positive phenomenon; FOIL advocates a very low test for general court involvement of a McKenzie Friend in civil litigation, provided that the conduct is limited to the draft parameters set out by the JEB in its consultation document. That said, we are looking forward to the final outcome of the consultation and hope regulators seize this opportunity to combat the proliferation of pseudo lawyers that ultimately deprives claimants of the expert representation they deserve.

Kurt Rowe, Head of the CPR & Protocols Sector Focus Team at FOIL

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