Unregulated, untrained and uninsured Friends should not be allowed to charge
The activities of unregulated, untrained and uninsured McKenzie Friends in the family courts is to come under the microscope with the commissioning of field research by the Bar Council into how they handle court work.
The move comes as the Bar Council escalated its warnings over McKenzie Friends who are charging unsuspecting members of the public (often vulnerable members of the public) for services in which they are not properly able to deliver.
The Bar Council has commissioned an independent team led by Dr Leanne Smith from Cardiff University to look at the role of ‘professional’ McKenzie Friends in the family courts. This field work will look at the type of work undertaken by McKenzie Friends as well as how they handle court work. The research will look at the experience of clients of McKenzie Friends, why they instructed a ‘so called’ professional McKenzie Friend (one which charges a fee for their work) and the nature of the service they received.
Chairman of the Bar, Chantal-Aimée Doerries QC, said: “Despite the seriousness of the issues being dealt with in the family courts, such as matters affecting children, little is currently known about the work of McKenzie Friends, which is why this research is so important. We hope this research will add to the growing body of knowledge about litigants in person (those who attempt to represent themselves in court), how individuals access legal assistance and the impact of different types of legal assistance on the administration of justice. As such, we anticipate that it will contribute to properly informed responses to the changing legal services market.
“We believe that families and the wider public are, in some cases, paying for McKenzie Friends without realising that these individuals are unregulated and often unqualified and uninsured. Qualifications, insurance and regulation are about the protection of the public. Individuals who want to act as McKenzie Friends should only be allowed to do so where they do not receive a payment for the assistance that they provide to a litigant.”
The Bar Council announced the independent research in its response to the judiciary’s consultation on McKenzie Friends.
The Bar Council says in its response that it believes that public/direct access barristers offer an important way of addressing concerns about access to justice for litigants who have some funds to pay for legal assistance, advice and/or representation. Although this option may not be appropriate or available in every case, members of the public, including businesses and corporations, are often able to instruct members of the Bar directly, without having to go via a solicitor or other third party. In the right circumstances, members of the Bar can be instructed for as much or as little work as the litigant requires, meaning they can be an attractive option for litigants who are only able to pay for some professional legal assistance. A young barrister will often charge a comparable or cheaper hourly rate than a McKenzie Friend.
Having launched the Direct Access Portal in 2015, a free-to-use directory of direct access barristers, the Bar Council is continuing to work to make sure that members of the public understand that they can seek advice and assistance from barristers without a professional or lay intermediary, and to make the process of instructing a barrister less daunting for those with little or no experience of the legal professions.
The Bar Council points out that just this week, 230 people won an important case against West Bromwich Mortgage Company in the Court of Appeal by taking the direct access barrister route.
Read the Bar Council’s full McKenzie Friend consultation response here