McKenzie Friends are essential to the Court System. So what are they allowed to do, and when will the legal hammer come down?

The Witchfinder explains the law on McKenzie Friends.

Your author is a law student who regularly practices, charitably, as a McKenzie Friend and so I was interested to read Natasha Philips’ recent article on McKenzie Friends. Natasha is right about the essential support provided to our cash strapped legal system (especially the Family Courts) by McKenzie Friends but this particular law student wanted to clarify a few points as to what McKenzie Friends may lawfully do.

Your Inquisitor has encountered several barristers who are unclear on what the law actually regulates, including more than one who wrongly complained I was giving legal advice, when the guidance explicitly says that McKenzie Friends may do so and even charge for it.

For those who are unaware, a McKenzie Friend is a creation of case law. In a divorce case called McKenzie v McKenzie [1970] 3 All ER 1034, Mr McKenzie was a litigant in person could not afford a lawyer. He had a friend who had Australian legal qualifications but not London ones. Mr McKenzie’s friend was not allowed to give assistance or sit next to Mr McKenzie. The Court of Appeal ruled that this should have been allowed and this created the courtroom role of McKenzie Friend.

The legal position on what McKenzie Friends may do is set out in the most recent Practice Guidance on McKenzie Friends. The guidance is essentially a summary of statute and case law by top judges. Essentially, it amounts to any activity not reserved in law to qualified lawyers.

Paragraph 27 is of essential importance,

“Litigants can enter into lawful agreements to pay fees to MFs for the provision of reasonable assistance in court or out of court by, for instance, carrying out clerical or mechanical activities, such as photocopying documents, preparing bundles, delivering documents to opposing parties or the court, or the provision of legal advice in connection with court proceedings. Such fees cannot be lawfully recovered from the opposing party.”

Legal activities are regulated by the Legal Services Act 2007. However, the act only controls a small subset of legal activities. These are set out in s12(1) of the Act and defined in detail in Schedule 2. The Act defines two categories of activity. These are, “Legal Activities” and “Reserved Legal Activities”. Anyone can do Legal Activities, but it is a criminal offence for an unqualified, unauthorised person to do Reserved Legal Activities. Giving legal advice, is amusingly, just a ‘Legal Activity’ not a ‘Reserved Legal Activity’, which is why the judges say in their guidance you can pay a McKenzie Friend to do it.

The reserved activities are –

(a)the exercise of a right of audience;
(talking to the judge, except to answer questions, cross-examining witnesses)

(b)the conduct of litigation;
Narrowly defined under schedule 2 as signing documents and commencing, defending and prosecuting proceedings. Does not  appear to include drafting documents, which is regulated separately

(c)reserved instrument activities;
A McKenzie Friend may not draft some types of documents. These are mostly land documents. Court pleadings are not included

(d)probate activities;
(e)notarial activities;
(f)the administration of oaths.
Very few McKenzie Friends, if any, will ever be asked to do these last three so I skip over them

So it appears that, according to the Act and legal guidance, a McKenzie Friend can quite legally advise on (for example) how to write a letter or even help write it. McKenzie Friends may not be a letter or address for service, may not sign Court forms (e.g. an N1 or COP9). McKenzie Friends may not act in place of their client and may not attend Court in their place.

These are not huge restrictions, indeed if our society regulated the giving of legal advice most consumer magazines would have to shred half their content.

The reasons for this are simple. For centuries the British legal system has operated a closed shop. We are one of the few countries in the world, for example, where there is a distinction between a solicitor and a barrister. In America you just have a general purpose attorney, akin to a British Solicitor-Advocate.

Britain has some great barristers and solicitors and some truly dreadful ones. In one case I attended, a High Court Judge praised all the lawyers present, including the McKenzie Friends, for their helpful and incisive remarks. Except for the council solicitor. The Judge, now an LJ, then pointedly thanked the council solicitor for turning up.

I have encountered many cases of lawyers charging £150 – £550 per hour giving destructive legal advice turning simple issues into complex and time consuming ones. I have seen judges shout at barristers for wracking up costs and asking why hearings are happening at all. In short, Britain’s legal profession has been too expensive and has restricted access to justice for years.

This country, in the midst of a global recession, can no longer afford our overpriced legal profession.

Although the Witchfinder is a law student, his day job is as an IT Contractor. The Witchfinder has a degree and professional certifications. Contractors in this industry, including senior managers with postgraduate level training, can earn £500+ for day.

By contrast, some good lawyers of the same calibre earn £550+ per hour putting them out of the price range of normal people and even local authorities.

Your inquisitor is a law student and is studying the seven key GDL modules – Contract, Tort, Public Law, Equity and Trust, Land Law, Criminal Law and EU Law. As a full time student this would take a single year (the Witchfinder is doing the 2 year part time course). An LPC or LLB takes a further year. In short it takes 2 years to do the academics to become a lawyer.

Bizarrely, regardless of intelligence or grades it is necessary to have a degree to enter a GDL, irrespective of whether one can pass the exams. This is logically unsustainable. Why should a bright mature student need a degree if they can demonstrate the requisite legal knowledge?

The author’s graduate degree is in Economics and believes that the current billing rates of the legal profession reflect an artificial monopoly. As society can no longer afford this and as legal aid rates fall, the government and courts have been gradually, de facto de-regulating.

The author believes that the legal profession should be refactored so anyone can enter provided they can pass a GDL (regardless of prior academic achievement) and an LPC or LLB. The author also believes that pupillages and training contracts should be abolished. Market forces will do the rest.