McKenzie Friend

From Wikipedia, the free encyclopedia

A McKenzie Friend assists a litigant in person in 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 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 and the U.S.A. (see below).

1 The Original McKenzie Friend
2 cf Amicus Curiae
3 Contentious when Confidentiality an Issue
4 What a McKenzie Friend does
5 What a McKenzie Friend cannot do
6 Financial basis
7 McKenzie Friends in different jurisdictions
- 7.1 Singapore
8 Notes

[edit] The Original McKenzie Friend

The original McKenzie friend was an Australian barrister in London, Ian Hanger, now a QC, whose qualifications in law in Australia did not allow him to practice as a barrister in London. Ian was sent the brief by the firm of solicitors, Geoffrey Gordon & Co for Mr McKenzie one day prior to the hearing. Mr McKenzie was unable to afford legal assistance, didn't qualify for legal aid, and had not maintaintained consistent contact with Geoffrey Gordon. Ian sat with his client to provide what quiet assistance he could from the bar table to a man representing himself. The trial Judge asked Ian to desist from doing what he was doing and this became the basis of the appeal by Geoffrey Gordon against the judgment against Mr McKenzie.

[edit] cf Amicus Curiae

The role should be distinguished from that of an amicus curiae, a "friend of the court" who provides information for the benefit of the court.

[edit] Contentious when Confidentiality an Issue

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.^[2] This has resulted in litigants in person, often fathers seeking to preserve their relationship with their children, being forced to act in court entirely alone with no support and no witness to their treatment by a judge.

A 2005 Court of Appeal case, In the matter of the children of Mr. O'Connell, Mr. Whelan and Mr. Watson,^[3] 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.

[edit] What a McKenzie Friend does

Provides moral support.
Provides sensible (non-legal) advice.
Speaks quietly to the litigant in person during the hearing.
Take notes during the hearing.
Assists with sourcing legal forms and templates of submissions.
Edits documents.

[edit] What a McKenzie Friend cannot do

Act as a legal representative.
Exercise rights of audience, unless
- invited to speak by the judge, or
- in hearings in a local small claims court.

[edit] Financial basis

Although in many cases a McKenzie Friend may be an actual friend, it is often somebody with knowledge of the area giving up their time on a pro bono basis. Out-of-pocket expenses, if requested, are typically covered by the litigant in person.

Since McKenzie Friends are not legal representatives, they cannot charge their time to the case at legal rates. A nominal hourly rate is recognised by some courts for the purposes of recovering costs from the other side in the event of a win.

McKenzie Friends may be liable for any misleading advice given to the litigant in person but are not covered by professional indemnity insurance.

[edit] McKenzie Friends in different jurisdictions

[edit] 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. 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.^[4]