The end of the friend? Ban on paid McKenzie friends proposed

In a move echoing calls from the Bar Council, the judiciary has proposed a blanket ban on fee-charging McKenzie friends, so that they can protect vulnerable litigants from paying cash rewards to unregulated individuals.

A judicial group led by Mrs Justice Asplin has released its long-awaited proposal on the issue of McKenzie friends today, and has recommended that not only is remuneration banned, but also that all McKenzie friends should sign up to a code of conduct.

The consultation has come at the end of mounting pressure to sort the issue of McKenzie friends out once and for all, which came to a head in 2015 when a McKenzie friend called a lawyer a ‘lying slag’ and was thus barred from his position.

The report stated that it would be in the ‘public interest’ if it were to impose the ban on fee-charging McKenzie friends, and that this proposal was in line with parliament’s wish that there are strict regulations imposed on the rights to conduct litigation.

The judiciary feels that if it was to extend the rights of paid McKenzie friends, it would “seem to implicitly acknowledge the creation of a new branch of the legal profession”, one which was “not subject to effective regulation on par with that provided by the existing frontline regulation”.

This is backed up by the standard form and code of conduct it wants McKenzie friends to sign, which would firstly make their intentions within the court exceptionally clear, but also would mean they have acknowledged their duty to both the court and the confidentiality of the litigation.

A further proposition was made that official rules of court should replace current practice guidance, as currently the force of law does not govern this guidance. This would allow courts more power to refuse individuals as McKenzie friends if they were giving poor advice, and would allow them to be barred for bad assistance, protecting future litigants from suffering the same fate.

The proposal has been widely welcomed by the Bar Council and the Law Society, but Ray Barry, chair of the Society of Professional McKenzie Friends, took a somewhat different view, stating that the “proposed prohibition on fee-charging McKenzie friends is neither in the interests of the consumer nor of the administration of justice. It is protectionism, pure and simple.”

He added that the proposal would mean that “the consumer that they must either pay whatever charges solicitors and barristers require of them or receive no legal help at all – no alternative is permitted.”

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