- The Lord Chief Justice’s consultation on Reforming the Courts’ Approach to McKenzie Friends.
Before we submit our text in the name of the Association of McKenzie Friends to firstname.lastname@example.org, here is:
- Natasha Phillips’ contribution of three salient points on her excellent blog Researching Reform;
- a McKenzie Friend’s text who wishes to remain anonymous and repeats all questions to be answered.
These are thus two good models / templates for you to submit your own response, or maybe just ‘general’ points.
Master of the Rolls Private Office
Royal Courts of Justice
London WC2A 2LL
REFORMING THE COURT’S APPROACH TO MCKENZIE FRIENDS – A CONSULTATION
I am writing to make representations regarding the “Reforming the Court’s Approach to McKenzie Friends – A Consultation”, currently being undertaken by the Judiciary Department of the Ministry of Justice.
My responses are under the question headings as set out in the consultation paper.
Question 1: Do you agree that the term ‘McKenzie Friend’ should be replaced by a term that is more readily understandable and properly reflects the role in question? Please give your reasons for your answer.
No, as the term McKenzie Friend has been around since the case that decided it, McKenzie v. McKenzie  P. 33, and has entered popular parlance with the general public.
To change it into some new-fangled “news speak” term would only alienate the public and confuse them, and it is highly likely that the term “McKenzie Friend” would continue to remain in common parlance in any event.
This is also shown by the fact that the term invented for McKenzie Friends from R. v. Leicester JJ ex p. Barrow  2 Q.B. 260 as “an unqualified legal adviser” never took off and hasn’t been used either in court or general usage since that case coined this phrase.
Question 2: Do you agree that the term ‘court supporter’ should replace McKenzie Friend? If not, what other term would you suggest? Please give your reasons for your answer.
No, for the reasons given above. In any event, the term “court supporter” is misleading as it gives the impression that the person concerned is assisting the court in some personal capacity and not the individual litigant who is in receipt of the lay assistance.
Question 3: Do you agree that the present Practice Guidance should be replaced with rules of court? Please give your reasons for your answer. Please also give any specific comments on the draft rules in Annex A.
No. I don’t agree with the current Practice Guidance and don’t think that stifling lay advice to litigants in person should be expressed in a set of rigid rules.
The granting of lay advice to litigants in person should be a matter entirely for the court in the exercise of its discretion without any limits or strait jackets forced on it.
If the litigant in person wants the assistance of a lay adviser, then he or she should be free to so chose if that is what the litigant in question wants.
If lay litigants were liable to be refused permission to act as “McKenzie Friends”, then this would also leave large numbers of litigants in person who for one reason or another don’t have lawyers to represent them at a distinct disadvantage.
The current rules for contempt and the inherent power of the courts to control their own proceedings and processes is also perfectly adequate to control any disruptive lay advisers and to order them to be removed in appropriate cases where they have abused their role as lay advocates.
Question 4: Should different approaches to the grant of a right of audience apply in family proceedings and civil proceedings? Please give your reasons for your answer and outline the test that you believe should be applicable. Please also give any specific comments on the draft rules.
I don’t think that there should be any difference between ordinary civil proceedings and family proceedings.
There are no grounds for differentiating these proceedings, and in family proceedings, the court may impose stricter conditions regarding the lay advocate reporting the case if heard in private.
If such directions are deliberately breached, the court has ample powers to deal with the matter under contempt laws.
In any event, the current trend is to have more cases in the family courts heard in open court rather than surrounded in secrecy as in the past in accordance with the “open justice” principle.
Cases that are heard in camera in the family courts should be in the minority and then only when it is in the interests of the parties and children if involved with the case, in order to protect their identities.
Question 5: Do you agree that a standard form notice, signed and verified by both the LiP and McKenzie Friend, should be used to ensure that sufficient information is given to the court regarding a McKenzie Friend? Please give your reasons for your answer.
I don’t consider that any standard form notice should be required of lay advisers. I think that such a requirement could lead to discrimination as the court and judges might be tempted to discriminate against certain lay advocates, as in their view, being unsuitable persons.
Again, the litigant in person should be able to choose who he or she wants to give assistance before the court.
Question 6: Do you agree that such a notice should contain a Code of Conduct for McKenzie Friends, which the McKenzie Friend should verify that they understand and agree to abide by? Please give your reasons for your answer.
No. There is no need for such a code. The matter should be left to the individual discretion of the judge hearing the case.
If the judge feels that it is necessary to impose any conditions on the lay adviser, then that should be a matter for individual judicial discretion.
Sometimes confidentiality of the proceedings or matters that have emerged during the course of those proceedings may arise, and it is only in those circumstances that a court might be justified in imposing any conditions on the lay adviser from publishing any material that has emerged during the course of the proceedings before it.
Question 7: Irrespective of whether the Practice Guidance (2010) is to be revised or replaced by rules of court, do you agree that a Plain Language Guide for LIPs and McKenzie Friends be produced? Please give your reasons for your answer.
There would be no objection to a guide being published that sets out the role of lay advisers in clear and precise language that can be understood by the layman.
However, there should be no attempt to stipulate conditions or rules in a rigid set of rules as proposed by court rules for instance.
Question 8: If a Plain Language Guide is produced, do you agree that a non-judicial body with expertise in drafting such Guides should produce it? Please you’re your reasons for your answer.
Yes, this would be highly advisable. It would also be better not to be drafted by lawyers who might use legalise and over complicate what could be a simple and straightforward and easily understandable guide.
Also, the Plain English Campaign should be consulted as to the language used and possibly invited to write it.
Question 9: Do you agree that codified rules should contain a prohibition on fee- recovery, either by way of disbursement or other form of remuneration? Please give your reasons for your answer.
No. Such a prohibition would be impossible to regulate in any event. Many litigants in person who receive lay adviser assistance give financial remuneration voluntarily in any event.
Question 10: Are there any other points arising from this consultation on that you would like to put forward for consideration? Please give your reasons for your answer.
I think apart from the proposed informal guide, that matters should be left exactly as they are as the current rules have been operating very successfully since 1970.
As a result, there would seem no necessity for any changes to be made. I accept that there may be a small minority of lay advisers who may have misbehaved and also been guilty of disruptive conduct in the court.
The courts at present have ample inherent powers to deal with this in the current exercise of judicial discretion.
Also, if litigants in person are denied lay advice, they will be at an even greater disadvantage before the courts when faced with represented opponents than they are now, and this cannot be in the overall interests of justice.