The government has been called on by the Judicial Executive Board (JEB) to rule on the future role and status of McKenzie Friends in court proceedings.
The use of McKenzie friends has risen notably in line with the number of litigants in person under the Legal Aid reforms of 2013 under the Legal Aid, Sentencing and Punishment of Offenders Act 2012.
Following calls for a complete ban on McKenzie friends charging fees to mirror the approach already taken in Scotland, the JEB launched a consultation in February 2016.
The aim of the consultation was to take feedback on a potential ban on fee recovery by McKenzie friends and on proposals to hold unqualified advisers to a code of conduct.
Over 200 responses were received, including 156 responses from individual members of the public, 30 from McKenzie friends, 15 from lawyers, 5 from academics. It also received 15 responses from individuals in judicial roles and 20 from legal, McKenzie Friend or regulatory bodies.
A working party was set up by the JEB in September 2017 to consider the responses alongside the then Lord Chief Justice, John Thomas.
The findings of the consultation were published this week by the JEB in a 31-page document.
The report notes that responses were broadly supportive of the introduction of a Code of Conduct and in terms of numbers, overwhelmingly opposed to a prohibition on fee-recovery.
There were clear recommendations for a non-judicial body to produce a ‘plain language’ guide for litigants in person and for practice guidance be updated, given the last review had taken place in 2010.
The report stated it was for the government to consider appropriate steps to be taken to enable litigants in person to secure effective access to legal assistance, legal advice and, where necessary, representation.
The JEB raised specific concerns about McKenzie friends in effect offering a professional service for reward when they are unqualified, unregulated, uninsured and not subject to the same professional obligations and duties as solicitors.
These concerns echoed those of the Law Society, which has been vocal about the current status of McKenzie friends, their position as untrained parties dealing with complex court proceedings and the impact on clients of poor advice and poor understanding of options and poor decision making as to whether to pursue or loss of a case with no redress with an unqualified, unregulated friend.
The consultation response has now referred to Lord Chancellor David Gauke.