Mckenzie friends and litigants in person—a system far from perfect

Family analysis: Simon Heaney, managing director at Heaney Watson, takes a look at the practicalities of dealing with cases where the other party is a litigant in person or represented by a McKenzie friend. 

How should a lawyer interact with a party assisted by a McKenzie friend or acting as a litigant in person?

I suppose the short answer to this is 'sensitively'. It is very easy to lose sight of the fact that, as a trained and practising lawyer, the court arena is familiar, the rules often second nature and of course there is the professional detachment from the case and its issues. Certainly for a litigant in person, the emotional involvement is often palpable, the surroundings daunting and the rules and procedures perplexing. This can result in a number of responses, ranging from defensiveness to hostility. It is not unusual for a litigant in person to see any approach by a lawyer as either intimidatory or certainly an inappropriate attempt to influence a case. Likewise a McKenzie friend may be more seasoned if they are appearing semi-professionally, but many are, in the traditional sense of the word, a friend or relative. While they may have less emotional investment, the procedure can still be overbearing. It is of course not the role as an opposing lawyer to fill in the gaps but certainly a raised awareness and appreciation is often needed.

To what extent should the McKenzie friend or litigant in person be treated as akin to a practising lawyer?

Ask any number of lawyers this and I suspect you will get a number of answers. What it does highlight though is the fact there is no clear set of rules for this. The Family Procedure Rules 2010, SI 2010/2955 are lagging behind the fact that litigants in person and McKenzie friends are more and more common. My personal view is that if a person is representing themselves, then the starting point should be that they are party to meetings, invitations, disclosure and suchlike. There are times when it is not appropriate or care and thought is needed. The material to be disclosed may be highly sensitive, particularly regarding some children cases—of course this should at the very least be highlighted and, if necessary, guidance sought from the court. It also adds a different complexion to meetings with, say, an expert. It is all too easy for the discussions to become technical and bamboozling. As a lawyer it is important to constantly check the language being used, the terminology and abbreviations are either understood, or that there is a greater emphasis on plain speaking.

What are the challenges when dealing with a McKenzie friend or litigant in person?

The challenges are as above—a litigant in person invariably does not have experience of court, how issues are narrowed, the rules of evidence and procedure. As lawyers, these things become second nature and we expect our opponents to be as conversant as we are and, if not, refer to the law and rules to establish their point or argument. To a large extent those principles go out of the window with a litigant in person. A major challenge is defining the issues--this is a very much underestimated art which assists the case in general, but importantly the court. The court expects it from the advocates, it saves a great deal of court time. However, it can be very hard to persuade a litigant in person that a particular issue is not relevant or is not pivotal to what the court is having to decide. Of course that is understandable, both in regards to the fact that that is what a great deal of a lawyer's training and skill is, coupled with the fact a litigant in person is conveying a position on issues of significant emotional importance to them.

Are there circumstances when a lawyer could refuse to work with a McKenzie friend?

It is important to emphasise that, most of the time, while a McKenzie friend can pose challenges to the lawyer advocate, they can provide a great comfort in giving moral support, quietly advising and helping the litigant. There can be times when the McKenzie friend may themselves be too emotionally embroiled in the issue or could be appearing not really to assist, but instead progressing a wider cause or agenda. On those rare occasions it can either prove very difficult or indeed impossible. In such circumstances it can be necessary to seek the guidance of the court, either in the judge resolving any conflict and establishing ground rules or, in extreme cases, prohibiting the McKenzie friend from assisting.

What is the court's approach to McKenzie friends and litigants in person? Are McKenzie friends and litigants in person here to stay?

I think the court sees the benefit of McKenzie friends in supporting litigants in person. It is not ideal, the use of McKenzie friends cannot possibly substitute or supplant trained, experienced advocates. But they have a role—they can assist the litigant and, in turn, the court. But it would be remiss to discount the inevitable delay and burden placed upon the court both in regard to the length of hearings and the court itself having to have a greater involvement in case management, discussion and suchlike. With the dismantling of legal aid now being a permanent fixture, it is an inevitable consequence that McKenzie friends and litigants in person are here to stay.

Interviewed by Alex Heshmaty.

The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.

This News Analysis was first published in LexisPSL Family. Click here for a free one week trial.

 

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