A consultation document has been published, making some suggestions about McKenzie Friends. One of the proposals is that their name be changed to something more meaningful
(I think I have told the story before about how the term McKenzie Friend just arrived out of chance because that was the name of the case where it was first asked for – in fact, as the person who was asking to assist was a Australian pupil barrister called Mr Hangar, it could just as easily have been “Hangar Friend” – though if you say that aloud, it takes on the murderous imperative sense. Digression 2 – for similar reasons, it is never advisable to attend Court singing the Smiths song “Panic” where the chorus goes “Hang the DJ, Hang the DJ, Hang the DJ, Hang the DJ” as Security will probably take you into a dark room and shine lights in your eyes)
The suggestion is “Court supporter”
Whilst that makes sense in terms of “It is a person who supports you in Court”, it carries the other connotation – as in “West Ham supporter” being a person who supports and admires and endorses West Ham. There are a few McKenzie Friends who wouldn’t really describe themselves as being a supporter, admirer or endorser of the family Courts.
Anyway, I know some McKenzie Friends read the blog and may be able to share this with others. [I’m not sure how the authors of the consultation intended to let practicing McKenzie Friends know about it]
Here are the details for responses
1.6 Consultation responses may be submitted by
email to firstname.lastname@example.org or by post to: McKenzie Friends Consultation, Master of the Rolls’ Private Office, Royal Courts of Justice, Strand, London WC2A 2LL.
1.7 The consultation opens on 25th February and closes on 19th May 2016
The document itself is here
Click to access consultation-paper-mckenzie_friends_feb2016.pdf
Sorry if you can’t do PDFs, I’d suggest emailing the address above and asking for a copy in a different format.
Here are the ten questions they pose
Question 1: Do you agree that the term ‘McKenzie Friend’ should be replaced by a term that is more readily understandable and properly reflects the role in question? Please give your reasons for your answer.
Question 2: Do you agree that the term ‘court supporter’ should replace McKenzie Friend? If not, what other term would you suggest? Please give your reasons for your answer.
Question 3: Do you agree that the present Practice Guidance should be replaced with rules of court? Please give your reasons for your answer. Please also give any specific comments on the draft rules in Annex A.
Question 4: Should different approaches to the grant of a right of audience apply in family proceedings and civil proceedings? Please give your reasons for your answer and outline the test that you believe should be applicable. Please also give any specific comments on the draft rules.
Question 5: Do you agree that a standard form notice, signed and verified by both the LiP and McKenzie Friend, should be used to ensure that sufficient information is given to the court regarding a McKenzie Friend? Please give your reasons for your answer.
Question 6: Do you agree that such a notice should contain a Code of Conduct for McKenzie Friends, which the McKenzie Friend should verify that they understand and agree to abide by? Please give your reasons for your answer.
Question 7: Irrespective of whether the Practice Guidance (2010) is to be revised or replaced by rules of court, do you agree that a Plain Language Guide for LIPs and McKenzie Friends be produced? Please give your reasons for your answer.
Question 8: If a Plain Language Guide is produced, do you agree that a non-judicial body with expertise in drafting such Guides should produce it? Please you’re your reasons for your answer.
Question 9: Do you agree that codified rules should contain a prohibition on fee-recovery, either by way of disbursement or other form of remuneration? Please give your reasons for your answer.
Question 10: Are there any other points arising from this consultation on that you would like to put forward for consideration? Please give your reasons for your answer.
I thought this bit of suggested legislation was interesting. (I am really looking forward to seeing how one defines ‘quietly’)
Except where a rule or other enactment provides otherwise, where a hearing is in public a court supporter may assist a litigant. Assistance may, as the litigant requires, take the form of any of the following:
(a) providing moral support;
(b) helping to manage the court documents and other papers;
(c) taking notes of the proceedings;
(d) advising the litigant quietly on—
(i) points of law and procedure;
(ii) issues which the litigant might wish to raise with the court;
(iii) questions which the litigant might wish to ask a witness.
If the proceedings are in ‘private’ (i.e a family case), the person needs permission from the Court.
McKenzie Friends may wish to know that although the proposed legislation allows a Court to allow a “Court supporter” to conduct litigation or have rights of audience (the ability to address the Court or put questions to witnesses) the proposal is that this MUST NOT be given where the “Court supporter” is charging for it in any way.
Permission granted under rule 3.23(3) will be withdrawn by the court at any time where the court supporter is receiving, either directly or indirectly, remuneration from the litigant in respect of exercising the right of audience or carrying out the conduct of litigation
This bit imposes the same duties on a Court supporter as a on a solicitor
Where an individual is authorised to act as a court supporter, that individual in respect of those proceedings is deemed to be an officer of the court and thereby owes such duties to the court as if they were a solicitor.
you do not attempt to deceive or knowingly or recklessly mislead the court;
you are not complicit in another person deceiving or misleading the court;
you comply with court orders which place obligations on you;
you do not place yourself in contempt of court;
where relevant, clients are informed of the circumstances in which your duties to the court outweigh your obligations to your client;
you comply with your duties to the court;
you ensure that evidence relating to sensitive issues is not misused;
you do not make or offer to make payments to witnesses dependent upon their evidence or the outcome of the case.
The proposed Rules also give the Court the discretion to refuse a particular individual to act as a “Court supporter”
(6) Assistance from a court supporter may be prohibited, refused, or withdrawn under rule 3.22(5) where:
(a) such assistance would be or is contrary to the efficient administration of justice; or
(b) the court supporter is an unsuitable person to act in that capacity (whether generally or in the proceedings concerned).
The proposed Rules also say that a person subject to Civil Restraint Order (i.e someone who isn’t able to make their own Court applications as a result of having made a number of frivolous or vexatious ones) can’t be a Court Supporter AND that a Court may consider making a Civil Restraint Order against a “Court supporter”
1. This Practice direction applies where the court is considering whether to make –
(a) a limited civil restraint order;
(b) an extended civil restraint order; or
(c) a general civil restraint order;
(a) a party who has issued claims or made applications which are totally without merit;
(b) against a court supporter who has acted in any proceeding or proceedings
(i) in a manner which is contrary to the proper administration of justice;
(ii) for remuneration contrary to any rule or order of the court; or
(iii) sought or exercised a right of audience or a right to conduct litigation on a regular basis.
I suspect lots of people will have views on these changes, one way or another*, so if you want to express your view, participate in the consultation.
(* for example, some people may consider that the changes are long overdue and level an unequal playing field, whereas some people may consider that the changes are a grudging acceptance that McKenzie Friends are necessary and required as a result of savage cuts but an attempt to starve/scare them out of taking on the role. Your mileage, as the saying goes, may vary. )