When there are ongoing court proceedings, the parties are entitled to be legally represented. However, increasingly, one or more of the parties appears before the court without a lawyer. That person is often referred to as a Litigant in Person. The main reason why a party to the case may be unrepresented, particularly in family proceedings, is because legal aid is much less available nowadays for such proceedings. As a general rule, a party will not get legal aid for a family law case unless there is specified evidence of domestic or child abuse and they qualify financially.

What is a McKenzie Friend?

A Litigant in Person has a right to have reasonable assistance from a layperson, sometimes called a McKenzie Friend. A McKenzie Friend has no independent right to provide assistance to the Litigant in Person, nor do they have a right to act as advocates or to carry out the conduct of the litigation. They are able to provide moral support, take notes, help with case papers and quietly give advice on any aspect of the conduct of the case. They cannot manage a Litigant in Person’s case outside of court, for example signing court documents. A McKenzie friend is not entitled to address the Judge or to question witnesses.

There are some McKenzie Friends that accept fees for their services. However, this is controversial. Should they be entitled to receive payment? The Law Society Gazette reports that late last year, a fee charging McKenzie Friend, David Bright, was jailed for perverting the course of justice.

The Solicitor that worked on the case that brought about the concept of a McKenzie Friend, Jeffrey Gordon, has said that unqualified advisers should not charge for their services. The Judiciary is proposing to apply a code of conduct for McKenzie Friends, but Jeffrey argues that this would create the impression of a McKenzie Friend being a profession. A profession should be regulated. He says that McKenzie Friends are unqualified and unregulated therefore they should not charge for their services. He says that such a role should be done on a pro bono basis i.e. for free.

The judiciary is expected to reveal the outcome of a consultation on its proposal for a code of conduct in the next few weeks.

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