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Litigants in person have the right to “reasonable assistance” from a McKenzie friend. The assistance a McKenzie friend can provide however is limited. The practice of permitting litigants in person the assistance of a McKenzie friend developed in the county courts (as they were called until 22 April 2014). With increasing numbers of litigants in person, it has now spread into the higher courts.
The McKenzie Friend is a “lay person”, however, in principle a practising lawyer who is not on the record could act as a McKenzie friend, subject to observing any relevant professional conduct rules.
The Court of Appeal held that the judge had been wrong to refuse the husband litigant in person in contested divorce proceedings voluntary assistance from an Australian barrister working for the firm of solicitors who had been acting for the husband previously (McKenzie v McKenzie [1970] 3 All ER 1034).
A McKenzie friend has no right to exercise rights of audience and no right to conduct litigation.
McKenzie friends may assist the litigant in person in court by making notes, quietly making suggestions and giving advice, however, they cannot address the court.
A McKenzie friend may assist the litigant with advice or administrative matters out of court, but cannot manage or conduct the case, or sign court documents.
On 25 February 2016, the Judicial Executive Board issued a consultation paper, which proposed reforms to the existing guidance for McKenzie Friends. Possible reforms included:
1. Codifying existing guidance into formal court rules.
2. Introducing a code of conduct for McKenzie Friends which would ensure that they acknowledge a duty to the court and a duty of confidentiality in relation to the litigation.
3. Prohibiting fee recovery by paid McKenzie Friends.
On 15 September 2017, it was reported that the judiciary is set to reassess the proposals. This announcement came as a result of the large number of responses to the consultation from a number of bodies, including the Law Society and the Solicitors Regulation Authority.
