The Judicial Executive Board (JEB) has just published a consultation on McKenzie Friends which focuses on how the courts should approach them, and one of its proposals? To ban any kind of fee charging for McKenzie services.
This latest news will not sit well with lawyers who have been trying to break into the McKenzie sector by offering their services at a discounted price. The JEB’s proposal stems from Scotland’s own stance on McKenzie Friends, or lay advisers who help Litigants in Person (LIPs) when they are unable to afford conventional legal representation: Scotland currently does not allow McKenzie Friends to charge for their support.
This proposal will also be cause for concern for some lay advisers who currently do not charge for their assistance, but who rely on clients to cover their travel costs and perhaps also a meal if they are in court all day. We very much hope the guidelines once drafted, will make an exception for this as these McKenzie Friends are in the main helping out of generosity of spirit and a sense of civic duty.
Something else to think on is the language that’s currently being used to describe the assistance lay advisers give – the legal sector views this assistance as support rather than a service whereas legal representation is always referred to as a service, so we must also question whether this is fair and whether this language either explicitly or implicitly suggests lay advice is not worthy of remuneration.
The consultation paper, which includes a set of draft Civil Procedure Rules and further proposals, sets out the current position in law and subsequent developments. It asks for feedback on the following:
- Terminology: the paper asks whether the term McKenzie Friends should be updated to something that is easier to understand, like ‘Court Supporter’.
- Developing rules of court: should a Practice Guidance be replaced with formal rules of court?
- Providing notice: should there be reforms to help LiPs understand what roles McKenzie Friends can play and any limitations on what they can do?
- Code of Conduct: should there be a universal Code of Conduct for McKenzie Friends?
- Plain language: the JEB proposes a plain language guide for both LiPs and McKenzie Friends and;
- Prohibition on fee recovery: the JEB suggests there should be a prohibition on fee recovery by paid McKenzie Friends. We are told, “The JEB’s intention is to protect the public interest and vulnerable litigants from unregulated and uninsured individuals seeking to carry out reserved legal activities. This approach is also in line with Parliament’s intention that rights of audience (the ability to appear and present a case in court) and to conduct litigation should be strictly regulated.”
The JEB would like to hear from you if you have any thoughts on the above. Submissions will need to be sent in by 19 May 2016 and can be emailed to email@example.com.
A very big thank you to Dana for alerting us to this consultation.