19/05/2022
The McKenzie Friend
Legal aid was introduced in 1949 with the Legal Aid and Advice Act to provide legal advice for those of slender means and resources, so that no one would be financially unable to prosecute a just and reasonable claim or defend a legal right; and to allow counsel and solicitors to be remunerated for their services.
Legal support and representation was to be available in all courts. Managed by a system of merit tests and a sliding scale of contribution. However, this was a heavy burden for the taxpayer and came under considerable scrutiny during the Thatcher era, with a series of measures to reduce expenditure managed by the Legal Aid Board.
Costs continued to rise, and spending reached £2.2 billion is 2010. The coalition government initiated a cost saving review that led to the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), and an attempt to save £350 million.
With the introduction of the LASPO 2012, funding to legal aid was severely affected, and spending on legal aid fell by 37 %. This meant that many could not get access to legal advice without some expense and has forced many to self-represent as a litigant in person.
Welcome the McKenzie Friend, a hero or villain. A McKenzie Friend is a lay advisor who does not have legal qualifications, although some do. They are there to provide support, often by having personal experience within the area of law concerned. Most McKenzie Friends act within the area of family law, although they can be found to support in any civil matter.
There are three types of McKenzie Friend, family members, or friends, who will provide moral support; voluntary helpers who are attached to an institution or charity, these generally will not charge a fee; or the professional fee charging McKenzie Friend. Both the volunteer helper and the fee charging McKenzie Friend should be legally trained, always ask to see their credentials.
The McKenzie Friend is just there for support, has no right of audience and cannot act on your behalf. What they can do is:
• Provide moral support for the litigant in person
• Take notes
• Help with case papers
• Give advice quietly on:
∗ points of law or procedure
∗ issues that the litigant may wish to raise in court
∗ questions the litigant may wish to ask witnesses
While not guaranteed admittance, it is a presumption, and the judge would only refuse to allow admittance for a very good reason.
The name McKenzie Friend is derived from the case in which one was refused. McKenzie v McKenzie (1970) was a divorce case. Mr McKenzie was a litigant in person who could not afford legal representation. His solicitor sent the details of the case to an Australian barrister who was visiting London but could not practice as his qualifications were not English.
On the day of the hearing, which was in open court, the barrister, who was sitting next to Mr McKenzie, attracted the attention of the judge with his conduct. The judge ordered the barrister to desist his actions and to keep his advice to adjournments. The husband’s petition was dismissed, and the wife granted a decree nisi.
Mr McKenzie appealed the decision on the grounds he had been denied representation. The appeal was successful, and the judge had acted in error, as every party has the right to have a friend present in court to assist by prompting, taking notes, and quietly giving advice. Having dismissed the husband’s friend, the judge had deprived McKenzie of that right.
The court therefore approved the use of an unqualified friend to a litigant to assist him in presenting his case when acting in person.
