McKenzie friend

A McKenzie friend assists a litigant in person in a common law court. This person does not need to be legally qualified. The crucial point is that litigants in person are entitled to have assistance, lay or professional, unless there are exceptional circumstances.

Their role was set out most clearly in the eponymous 1970 case McKenzie v. McKenzie.^[1] Although this role applies in the jurisdiction of England and Wales, it is regarded^[who?] as having its origins in common law and hence has been adopted in practice in other common law jurisdictions such as Australia, Canada, New Zealand, the Republic of Ireland, and the USA.^{[citation needed]} Although in many cases a McKenzie friend may be an actual friend, it is often^{[citation needed]} somebody with knowledge of the area. He or she may be liable for any misleading advice given to the litigant in person but are not covered by professional indemnity insurance.

The role is distinct from that of a next friend or of an amicus curiae.

Limitations

What a McKenzie friend does Take notes during the hearing Provides moral support Provides advice Speaks quietly to the litigant in person during the hearing Assists with sourcing legal forms and templates of submissions Edits documents In the UK, may be granted Rights of Audience on a case by case basis if the Judge Allows In the UK, may be granted permission to conduct litigation on a case by case basis if the Judge Allows (EXTREMELY RARE)

What a McKenzie friend cannot do Act as a legal representative. Exercise rights of audience, unless permitted to do so by the judge, or in hearings in a local small claims court Conduct litigation (unless permitted to do so by the judge)

A McKenzie friend is sometimes able to enter a police station custody area where a friend or relative is being held prisoner,^{[citation needed]} something a relative or friend would not normally be allowed to do.

Financial basis

A McKenzie friend may be giving up their time on a pro bono basis. Out-of-pocket expenses, if requested, are typically covered by the litigant in person. McKenzie friends cannot charge their time to the case at legal rates. A nominal hourly rate is recognised by some courts^[specify] for the purposes of recovering costs from the other side in the event of a win.

The original McKenzie friend

McKenzie v McKenzie was a divorce case in England.^[2] Levine McKenzie, who was petitioning for divorce, had been legally aided but the legal aid had been withdrawn prior to the case going to court. Unable to fund legal representation, McKenzie had broken off contact from his solicitors, Geoffrey Gordon & Co. However, one day before the hearing, Geoffrey Gordon & Co sent the case to an Australian barrister in London, Ian Hanger, whose qualifications in law in Australia did not allow him to practise as a barrister in London. Hanger hoped to sit with his client to prompt him, take notes, and suggest questions in cross-examination, thereby providing what quiet assistance he could from the bar table to a man representing himself. The trial judge ordered Hanger that he must not take any active part in the case except to advise McKenzie during adjournments and must sit in the public gallery of the court. Hanger assumed his limited role was futile, and did not return for the second day of the trial.^[2]

The case went against McKenzie, who then appealed to the Court of Appeal on the basis that he had been denied representation. On 12 June 1970 the Court of Appeal ruled that the Judge's intervention had denied McKenzie of assistance to which he was entitled, and ordered a retrial.^[3]

Ian Hanger AM QC, the original McKenzie friend, is now a Queen's Counsel at the Queensland Bar.^[2][4]

McKenzie friends in specific jurisdictions

Singapore

In September 2006, the Subordinate Courts of Singapore started a pilot project called the Lay Assistant Scheme in which persons, usually with some legal knowledge, attend hearings with litigants who are not represented by lawyers to advise them on non-legal issues and help them with administrative tasks. The scheme, a modification of the U.K.'s McKenzie Friend system, is intended to assist litigants who are not eligible for legal aid as they have an annual salary exceeding S$10,000 but cannot afford a lawyer.^{[citation needed]} For the litigant to qualify, the other party must be legally represented.

Lay assistants are not allowed to act as lawyers and may not address the court; any breach of court rules may render them liable to a maximum fine of $1,000 or imprisonment of up to six months.

Plans for introducing McKenzie Friends in court proceedings were first announced by Chief Justice Chan Sek Keong in May 2006. Students from the Pro Bono Group of the Faculty of Law, National University of Singapore, have been participating in the scheme.^[5]

England

In English courts, where a case is being heard in private, the use of a McKenzie friend has sometimes been contentious. This is a particular problem in family court hearings, where it has been held that the nature of the case is so confidential that no one other than the litigants and their professional legal representatives should be admitted to the court.^[6]

A 2005 Court of Appeal case, In the matter of the children of Mr. O'Connell, Mr. Whelan and Mr. Watson,^[7] clarified the law in this area. The result of the appeal has legitimised the use of McKenzie friends in the family court and allowed the litigant to disclose confidential court papers to the McKenzie friend.

Services are now being catered for in England that provide professional Mckenzie Friend assistance, the benefit has been to assist those that cannot afford traditional high street law firm fees or require such a full service with the option of utilizing such assistance but in a varying capacity. Other areas have similarly been exploited including Online Divorce which has meant that the ramification of Mckenzie v Mckenzie has grown to apply in similar respects to varying fields within the legal sector.

Notes

1. ^ [1971] P 33; [1970] 3 WLR 472; [1970] 3 All ER 1034, CA
2. ^ ^{a b c} Forsyth, John (4 May 2009). "Little help from my friends". The Scotsman. http://thescotsman.scotsman.com/scotland/Little-help-from-my-friends.5230777.jp. Retrieved 26 April 2010. 
3. ^ "Litigant In Person Has Right To Assistance" (Law report), The Times, 17 June 1970, p. 8.
4. ^ "Council Members". National Alternative Dispute Resolution Advisory Committee. http://www.nadrac.gov.au/www/nadrac/nadrac.nsf/Page/About_NADRACCouncil_Members. Retrieved 26 April 2010. 
5. ^ Ansley Ng, "Law Undergrads in Court's Pilot Scheme", Today [1] (5 January 2007).
6. ^ "McKenzie Friends" (30 August 2006), from the website of Families Need Fathers.
7. ^ [2005] EWCA Civ 759, available on-line from the website of the British and Irish Legal Information Institute (BAILII).