A recent London County Court trial has highlighted the real problems courts are facing with litigants in person, AI and, in this particular case, the McKenzie Friend.
For those who haven’t come across a McKenzie Friend, the President’s Office clearly sets out the boundaries of that role. They can provide moral support, take notes, help with case papers and quietly give advice on points of law or procedure. The use of the term quietly underpins the expectations on their role.
In this case, two days before trial the McKenzie Friend filed a 28-page skeleton argument and 30-page application seeking to adjourn the trial that had been listed seven months earlier.
Not only did the application refer to Part 36 offers but worryingly it contained case-law citations that were completely fictitious and quoted passages which were a mishmash of earlier court decisions.
Notably the application was signed by the McKenzie friend rather than the litigant in person.
Following the case of Mazur, the conduct of litigation has been under intensive scrutiny. A McKenzie Friend is not allowed to conduct litigation, nor do they have permission to correspond with the court. The general practice of many courts is to disregard such correspondence as this is a breach of the Legal Services Act 2007.
In this case, the judge refused the claimant’s application and the case was dismissed. Of particular interest, the McKenzie Friend was cited in the preamble to the order:
“AND UPON the Court considering that the Claimant’s McKenzie Friend, (redacted), has acted in breach of the Legal Services Act 2007 by conducting litigation on behalf of the Claimant, notwithstanding the statements signed by them to the contrary, and noting in particular that McKenzie Friends do not have permission to correspond with the court on behalf of litigants in person.”
The judge was rightly frustrated by both the nonsensical AI documents and the overstepping of the McKenzie Friend, choosing to set a timely reminder of the role’s limitations, which are there to protect the claimant.
In exceptional cases, rights of audience can be granted by the court. For tactical reasons this can sometimes be advantageous to defendants as it can help hearings progress more efficiently.
It would create an uneven playing field if they were to be granted rights similar to those of a barrister or solicitor, as judges could be forgiven for confusing a persuasive McKenzie Friend with the experience and training of a qualified lawyer. Instead, the limitations are there to remind the judge that this is a litigant appearing without formal legal representation and the court should bear this in mind.
Because McKenzie Friends are not legally qualified, regulated solicitors or barristers, there has also been a growing trend of such representatives exceeding their role and doing a disservice to the very people they are there to help. The courts have notably taken a harsh line in such cases, with numerous reports of custodial sentences being applied.
Whilst in this case there was no illegality or fraud, it did come at a real cost to the claimant. His claim was dismissed, despite an admission of liability and an active Part 36 offer on the table. Had he sought advice from a qualified lawyer (or perhaps listened to the advice he had been given), it would probably have been quite a different result.
McKenzie Friends may have a legitimate and useful purpose when they adhere to their role and, most importantly, do it competently. However, there is no substitute for proper legal advice and representation from a qualified solicitor or barrister.
Rachel Cain - Senior Associate, Complex Injury
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