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Code of Conduct for McKenzie Friends
1. When someone involved in a court case asks another person to assist, not as a lawyer or a witness but as a friend, the person helping is often called a "McKenzie Friend".
2. This Code of Conduct summarises what is involved if you are asked to be a "McKenzie Friend" and what the Court will expect of you.
3. Detailed guidance (the guidance) was issued on 12 July 2010 by the Head of Civil Justice and the Head of Family Justice, and you should read that. It is available online at http://www.judiciary.gov.uk/Resources/JCO/Documents/Guidance/mckenzie- friends-practice-guidance-july-2010.pdf .
4. If you follow the Guidance and this Code of Conduct, your involvement may be of material help to the person you are assisting and the Court.
5. If you have a financial interest in the case's outcome, you should generally decline to assist.
6. If you have a personal interest in the outcome of the case, then before agreeing to assist, you should think about whether someone else who does not have a personal interest might be better placed to help.
7. You may attend the court case hearing unless the Court says you cannot.
8. You may read the papers for the court case unless the Court says you cannot.
9. You should let the staff at the Court know that you have been asked to assist as soon as you arrive.
10. You should bring a short curriculum vitae (cv), and if the Court staff asks you to complete a short set of questions about yourself, you should do so.
11. If you are being paid to assist or regularly assist several different people as a McKenzie Friend, you should make the Court aware of that.
12. The Guidance makes clear that you may provide moral support, take notes, help with case papers and give advice to the person you are assisting.
13. Normally the person you are assisting will be the one to speak to the Judge. But if that person cannot manage, the Judge may let you speak instead.
14. You must always follow any instructions given by the Judge.
15. If the Judge asks the person you are assisting to do something, please encourage them to do it, and remind them of any deadlines.
16. You should be courteous at all times to everyone else.
17. You should try to ensure that how you assist does not cause any disruption or distract others. This is particularly important when someone else is speaking to the Judge, or the Judge is speaking.
18. You must behave with honesty and not do anything that might mislead the Court or anyone else.
19. You should consider at regular points whether the person you are assisting might also be helped by attending a Citizens Advice Bureau, Law Center or Personal Support Unit. If you conclude that they might, you should give genuine and conscientious consideration to encouraging the person you are assisting in seeking further help if it may be beneficial if you go with them.
20. Please remember at all times that you are there to assist someone else and not on your behalf.
Practice Guidance: McKenzie Friends (Civil and Family Courts)
1) This Guidance applies to civil and family proceedings in the Court of Appeal (Civil Division), the High Court of Justice, the County Courts and the Family Proceedings Court in the Magistrates' Courts.1 It is issued as guidance (not as a Practice Direction) by the Master of the Rolls, as Head of Civil Justice, and the President of the Family Division, as Head of Family Justice. It is intended to remind courts, and litigants of the principles set out in the authorities and supersede the guidance contained in Practice Note (Family Courts: McKenzie Friends) (No 2)  1 WLR 2757, which is now withdrawn.2 It is issued in light of the increase in litigants-in-person (litigants) in all levels of the civil and family courts.
The Right to Reasonable Assistance
2) Litigants have the right to have reasonable assistance from a layperson, sometimes called a McKenzie Friend (MF). Litigants assisted by MFs remain litigants-in-person. MFs have no independent right to assist. They have no right to act as advocates or to carry out the conduct of litigation.
What McKenzie Friends may do
3) MFs may: i) provide moral support for litigants; ii) take notes; iii) help with case papers; iii) quietly advise on any aspect of the conduct of the case.
What McKenzie Friends may not do
4) MFs may not: i) act as the litigants' agent concerning the proceedings; ii) manage litigants' cases outside Court, for example, by signing court documents; or iii) address the Court, make oral submissions or examine witnesses.
Exercising the Right to Reasonable Assistance
5) While litigants ordinarily have a right to receive reasonable assistance from MFs, the Court retains the power to refuse to permit such service. The Court may do so where it is satisfied that, in that case, the interests of justice and fairness do not require the Litigant to receive such assistance.
6) A litigant who wishes to exercise this right should inform the Judge as soon as possible, indicating who the MF will be. The proposed MF should produce a short curriculum vitae or other statements
setting out relevant experience, confirming that he or she has no interest in the case and understands the MF's role and the duty of confidentiality.
7) If the Court considers that there might be grounds for circumscribing the right to receive such assistance, or a party objects to the presence of, or assistance given by a MF, it is not for the Litigant to justify the exercise of the right. It is for the Court or the objecting party to provide sufficient reasons why the Litigant should not receive such assistance.
8) When considering whether to circumscribe the right to assistance or refuse a MF permission to attend, the right to a fair trial is engaged. The matter should be considered carefully. The Litigant should be given a reasonable opportunity to argue the point. The proposed MF should not be excluded from that hearing and should generally be allowed to help the Litigant.
9) Where proceedings are in closed Court, i.e. the hearing is in chambers, is in private, or the proceedings relate to a child, the Litigant is required to justify the MF's presence in Court. The presumption in favour of permitting a MF to attend such hearings, and thereby enable litigants to exercise the right to assistance, is a strong one.
10)The Court may refuse to allow a litigant to exercise the right to receive assistance at the start of a hearing. The Court can also circumscribe the right during the course of a hearing. It may be refused at the beginning of a hearing or later circumnavigated where the Court forms the view that a MF may give or is giving assistance that impedes the efficient administration of justice. However, the Court should also consider whether a firm and unequivocal warning to the Litigant and/or MF might suffice in the first instance.
11) A decision by the Court not to curtail assistance from a MF should be regarded as final, save on the ground of subsequent misconduct by the MF or on the basis that the MF's continuing presence will impede the efficient administration of justice. In such an event the Court should give a short judgment setting out the reasons why it has curtailed the right to assistance. Litigants may appeal such decisions. MFs have no standing to do so.
12) The following factors should not be taken to justify the Court refusing to permit a litigant to receive such assistance:
(i) The case or application is simple or straightforward, or is, for instance, a directions or case management hearing;
(ii) The Litigant appears capable of conducting the case without assistance;
(iii) The Litigant is unrepresented through choice;
(iv) The other party is not represented;
(v) The proposed MF belongs to an organisation that promotes a particular cause;
(vi) The proceedings are confidential, and the court papers contain sensitive information relating to a family's affairs
13) A litigant may be denied the assistance of a MF because its provision might undermine or has undermined the efficient administration of justice. Examples of circumstances where this might arise are i) the assistance is being provided for an improper purpose; ii) the assistance is unreasonable in nature or degree; iii) the MF is subject to a civil proceedings order or a civil restraint order; iv) the MF is using the Litigant as a puppet; v) the MF is directly or indirectly conducting the litigation; vi) the Court is not satisfied that the MF fully understands the duty of confidentiality.
14) Where a litigant is receiving assistance from a MF in care proceedings, the Court should consider the MF's attendance at any advocates' meetings directed by the Court, and, concerning cases commenced after 1.4.08, view directions in accordance with paragraph 13.2 of the Practice Direction Guide to Case Management in Public Law Proceedings.
15) Litigants are permitted to communicate any information, including filed evidence, relating to the proceedings to MFs to obtain advice or assistance concerning the proceedings.
16) Legal representatives should ensure that documents are served on litigants in good time to enable them to seek assistance regarding their content from MFs in advance of any hearing or advocates' meeting.
17) The High Court can, under its inherent jurisdiction, impose a civil restraint order on MFs who repeatedly act in ways that undermine the efficient administration of justice.
Rights of audience and rights to conduct litigation
18)MFs do not have a right of audience or a right to conduct litigation. It is a criminal offence to exercise rights of audience or to conduct litigation unless adequately qualified and authorised to do so by an appropriate regulatory body or, in the case of an otherwise unqualified or unauthorised individual (i.e., a lay individual including a MF), the court grants such rights on a case-by-case basis.3
19) Courts should be slow to grant any application from a litigant for a right of audience or a right to conduct litigation to any layperson, including a MF. This is because a person exercising such rights must ordinarily be appropriately trained, be under professional discipline (including an obligation to insure against liability for negligence) and be subject to an overriding duty to the Court. These requirements are necessary for the protection of all parties to litigation and are essential to the proper administration of justice.
20) Any application for a right of audience or a right to conduct litigation to be granted to any layperson should therefore be considered very carefully. The Court should only be prepared to grant such rights where there is good reason to do so, taking into account all the circumstances of the case, which are likely to vary significantly. Such grants should not be extended to laypersons automatically or without due consideration. They should not be granted for mere convenience.
21) Examples of the type of exceptional circumstances which have been held to justify the grant of a right of audience to a layperson, including a MF, are: i) that person is a close relative of the Litigant; ii) health problems preclude the Litigant from addressing the Court or conducting litigation, and the Litigant cannot afford to pay for a qualified legal representative; iii) the Litigant is relatively inarticulate and prompting by that person may unnecessarily prolong the proceedings.
22)It is for the Litigant to persuade the Court that the circumstances of the case are such that it is in the interests of justice for the Court to grant a layperson a right of audience or a right to conduct litigation.
23)The grant of a right of audience or a right to conduct litigation to laypersons, who hold themselves out as professional advocates or professional MFs or who seek to exercise such requests regularly, whether for reward or not, will however only be granted in exceptional circumstances. To do otherwise would tend to subvert the will of Parliament.
24)If a litigant wants a layperson to be granted a right of audience, an application must be made at the start of the hearing. If a right to conduct litigation is sought, such an application must be made at the earliest possible time and must be made, in any event, before the layperson does anything which amounts to the conduct of litigation. It is for litigants to persuade the Court, on a case-by-case basis, that the grant of such rights is justified.
25)Rights of audience and the right to conduct litigation are individual rights. The grant of one right to a layperson does not mean that a grant of the other right has been made. If both rights are sought, their grant must be applied for individually and justified separately.
26)Having granted either a right of audience or a right to conduct litigation, the Court has the power to remove either right. The grant of such rights in one set of proceedings cannot be relied on as a precedent supporting their grant in future proceedings.
27)Litigants can enter into legal agreements to pay fees to MFs for the provision of reasonable assistance in Court or out of Court by, for instance, carrying out clerical or mechanical activities, such as photocopying documents, preparing bundles, delivering papers to opposing parties or the Court, or the provision of legal advice in connection with court proceedings. Such fees cannot be lawfully recovered from the opposing party.
28) Fees said to be incurred by MFs for carrying out litigation, where the Court has not granted such a right, cannot lawfully be recovered from either the Litigant for whom they carry out such work the opposing party.
29)Fees said to be incurred by MFs for carrying out litigation after the Court has granted such a right are in principle recoverable from the Litigant for whom the work is carried out. Such fees cannot be lawfully recovered from the opposing party.
30) Fees said to be incurred by MFs for exercising a right of the audience following the grant of such a right by the Court are in principle recoverable from the Litigant on whose behalf the right is exercised. Such fees are also recoverable, in principle, from the opposing party as a recoverable disbursement: CPR 48.6(2) and 48(6)(3)(ii).
Personal Support Unit & Citizen's Advice Bureau
31) Litigants should also be aware of the services provided by local Personal Support Units and Citizens' Advice Bureaux. The PSU at the Royal Courts of Justice in London can be contacted on 020 7947 7701, by email at email@example.com, their website: www.thepsu.org.uk or at the enquiry desk. The CAB at the Royal Courts of Justice in London can be contacted on 020 7947 6564 or at the enquiry desk.
Lord Neuberger of Abbotsbury, Master of the Rolls
Sir Nicholas Wall, President of the Family Division
15 July 2020
3. Legal Services Act 2007 s12 – 19 and Schedule 3.