In the England and Wales legal jurisdiction, McKenzie Friends started out by accident. A lawyer qualified in another country, but not having rights to appear in the English High Court, was informally assisting a friend in a complicated case. His right to be there was challenged and the Appeal Courts approved his presence and help. Since then their use has been growing and their role expanding as the judiciary recognise the help they can give. |
In July 2010 a new policy statement was issued jointly by the Master of the Rolls (the head of the Civil Court system) and the President of the Family Division (who controls the Family Court system). These are two of the highest judges in the England and Wales jurisdiction and what they say about McKenzie Friends is what goes! This is in spite of the fact that many lawyers and particularly barristers are fighting a rear-guard action to preserve the old system.
The new document makes it clear for the first time that McKenzie Friends are fully entitled to charge and be paid for the work they do. They are expected to assist quietly in court and not try to speak on behalf of the party except in very rare cases.
McKenzie Friends can now do more. They can do pretty much everything except run the litigation on behalf of the party themselves. They can support the client by advising on the law as well as performing clerical duties such as helping to draft documents and letters, as long as these are all signed by the party on their own behalf.
They may also deliver documents for their clients and talk to the opponents with their permission and in the presence of the party.
Many barristers at courts still feel they have a duty to object to the use of a McKenzie Friend. However, the new policy document makes it clear that they can only legitimately do so for reasons concerning the interests of justice. Simply making a fuss as many do just because they perceive McKenzie Friends as a threat to their own profession is not good enough. People use McKenzie Friends often because they want to avoid the delays and costs associated with professional lawyers and the courts are more readily finding that these sorts of objections are irrelevant.
It is also made clear that once a McKenzie Friend has been allowed by a court in a particular case, that decision does not need to be looked at again and again, provided the McKenzie Friend does nothing to cause the court to take a different view. The forlorn tactic of some barristers by which they waste everybody's time and money by trying to make a challenge at every hearing is increasingly seen for what it is and frowned upon by the courts.
So, the top judges in the country now confirm that McKenzie Friends have a major role to play in supporting parties who wish to conduct their own litigation and that the job of a McKenzie Friend is increasingly seen as a professional alternative to the old-fashioned solicitor.
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