McKenzie Friend
Encyclopedia
A McKenzie friend assists a litigant in person
in a common law
court. This person does not need to be legally qualified. The crucial point is that litigants in person are entitled to have assistance, lay or professional, unless there are exceptional circumstances.
Their role was set out most clearly in the eponymous 1970 case McKenzie v. McKenzie. Although this role applies in the jurisdiction of England and Wales
, it is regarded as having its origins in common law
and hence has been adopted in practice in other common law jurisdictions such as Australia
, Canada
, New Zealand
, the Republic of Ireland
, and the USA
. Although in many cases a McKenzie friend may be an actual friend, it is often somebody with knowledge of the area. He or she may be liable for any misleading advice given to the litigant in person but are not covered by professional indemnity insurance.
The role is distinct from that of a next friend
or of an amicus curiae
.
A McKenzie friend is sometimes able to enter a police station custody area where a friend or relative is being held prisoner, something a relative or friend would not normally be allowed to do.
basis. Out-of-pocket expenses
, if requested, are typically covered by the litigant in person
. McKenzie friends cannot charge their time to the case at legal rates. A nominal hourly rate is recognised by some courts for the purposes of recovering costs from the other side in the event of a win.
case in England. Levine McKenzie, who was petitioning for divorce, had been legally aided
but the legal aid had been withdrawn prior to the case going to court. Unable to fund legal representation, McKenzie had broken off contact from his solicitors, Geoffrey Gordon & Co. However, one day before the hearing, Geoffrey Gordon & Co. sent the case to an Australian barrister in London, Ian Hanger, whose qualifications in law in Australia did not allow him to practise as a barrister in London. Hanger hoped to sit with his client to prompt him, take notes, and suggest questions in cross-examination, thereby providing what quiet assistance he could from the bar table
to a man representing himself. The trial judge ordered Hanger that he must not take any active part in the case except to advise McKenzie during adjournments and must sit in the public gallery of the court
. Hanger assumed his limited role was futile, and did not return for the second day of the trial.
The case went against McKenzie, who then appealed to the Court of Appeal on the basis that he had been denied representation. On 12 June 1970, the Court of Appeal ruled that the Judge's intervention had denied McKenzie of assistance to which he was entitled, and ordered a retrial.
Ian Hanger AM
QC
, the original McKenzie friend, is now a Queen's Counsel at the Queensland
Bar.
started a pilot project called the Lay Assistant Scheme in which persons, usually with some legal knowledge, attend hearings with litigants who are not represented by lawyers to advise them on non-legal issues and help them with administrative tasks. The scheme, a modification of the U.K.'s McKenzie Friend system, is intended to assist litigants who are not eligible for legal aid as they have an annual salary exceeding S$10,000 but cannot afford a lawyer. For the litigant to qualify, the other party must be legally represented.
Lay assistants are not allowed to act as lawyers and may not address the court; any breach of court rules may render them liable to a maximum fine of $1,000 or imprisonment of up to six months.
Plans for introducing McKenzie Friends in court proceedings were first announced by Chief Justice
Chan Sek Keong
in May 2006. Students from the Pro Bono Group of the Faculty of Law, National University of Singapore, have been participating in the scheme.
hearings, where it has been held that the nature of the case is so confidential that no one other than the litigants and their professional legal representatives should be admitted to the court.
A 2005 Court of Appeal case, In the matter of the children of Mr O'Connell, Mr Whelan and Mr Watson, clarified the law in this area. The result of the appeal has legitimised the use of McKenzie friends in the family court and allowed the litigant to disclose confidential court papers to the McKenzie friend.
Services are now being catered for in England that provide professional Mckenzie Friend assistance, the benefit has been to assist those that cannot afford traditional high street law firm fees or require such a full service with the option of utilizing such assistance but in a varying capacity. Other areas have similarly been exploited including Online Divorce which has meant that the ramification of Mckenzie v. Mckenzie has grown to apply in similar respects to varying fields within the legal sector.
Litigant in person
A litigant in person, in the United Kingdom, is an individual, company or organisation that is not represented in court by a solicitor or barrister, but nevertheless has rights of audience...
in a common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
court. This person does not need to be legally qualified. The crucial point is that litigants in person are entitled to have assistance, lay or professional, unless there are exceptional circumstances.
Their role was set out most clearly in the eponymous 1970 case McKenzie v. McKenzie. Although this role applies in the jurisdiction of England and Wales
England and Wales
England and Wales is a jurisdiction within the United Kingdom. It consists of England and Wales, two of the four countries of the United Kingdom...
, it is regarded as having its origins in common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
and hence has been adopted in practice in other common law jurisdictions such as Australia
Law of Australia
The law of Australia consists of the Australian common law , federal laws enacted by the Parliament of Australia, and laws enacted by the Parliaments of the Australian states and territories...
, Canada
Law of Canada
The Canadian legal system has its foundation in the British common law system, inherited from being a former colony of the United Kingdom and later a member of the Commonwealth of Nations. Quebec, however, still retains a civil system for issues of private law...
, New Zealand
Law of New Zealand
The law of New Zealand can be found in several sources. The primary sources of New Zealand law are statutes enacted by the New Zealand Parliament and decisions of the New Zealand Courts. At a more fundamental level, the law of New Zealand is based on three related principles: parliamentary...
, the Republic of Ireland
Law of the Republic of Ireland
The law of the Republic of Ireland consists of constitutional, statute and common law. The highest law in the Republic is the Constitution of Ireland, from which all other law derives its authority...
, and the USA
Law of the United States
The law of the United States consists of many levels of codified and uncodified forms of law, of which the most important is the United States Constitution, the foundation of the federal government of the United States...
. Although in many cases a McKenzie friend may be an actual friend, it is often somebody with knowledge of the area. He or she may be liable for any misleading advice given to the litigant in person but are not covered by professional indemnity insurance.
The role is distinct from that of a next friend
Next friend
In common law, next friend is a phrase used to refer to a person who represents another person who is under disability or otherwise unable to maintain a suit on their own behalf and who does not have a legal guardian....
or of an amicus curiae
Amicus curiae
An amicus curiae is someone, not a party to a case, who volunteers to offer information to assist a court in deciding a matter before it...
.
What a McKenzie friend does
- Take notes during the hearing.
- Provides moral supportMoral supportMoral support is a way of giving support to a person or cause, or to one side in a conflict, without making any contribution beyond the emotional or psychological value of the encouragement....
. - Provides advice.
- Speaks quietly to the litigant in personLitigant in personA litigant in person, in the United Kingdom, is an individual, company or organisation that is not represented in court by a solicitor or barrister, but nevertheless has rights of audience...
during the hearing. - Assists with sourcing legal forms and templates of submissions.
- Edits documents.
- In the UK, may be granted rights of audience on a case by case basis if the Judge allows.
- In the UK, may be granted permission to conduct litigation on a case by case basis if the Judge allows; this is extremely rare.
A McKenzie friend is sometimes able to enter a police station custody area where a friend or relative is being held prisoner, something a relative or friend would not normally be allowed to do.
What a McKenzie friend cannot do
- Act as a legal representative.
- Exercise rights of audienceRights of audienceIn common law, a right of audience is generally a right of a lawyer to appear and conduct proceedings in court on behalf of their client. In English law, there is a fundamental distinction between barristers, who have a right of audience, and solicitors, who traditionally do not ; there is no such...
, unless permitted to do so by the judge, or in hearings in a local small claims courtSmall claims courtSmall-claims courts have limited jurisdiction to hear civil cases between private litigants. Courts authorized to try small claims may also have other judicial functions, and the name by which such a court is known varies by jurisdiction; it may be known as a county or magistrate's court...
. - Conduct litigation (unless permitted to do so by the judge).
Financial basis
A McKenzie friend may be giving up their time on a pro bonoPro bono
Pro bono publico is a Latin phrase generally used to describe professional work undertaken voluntarily and without payment or at a reduced fee as a public service. It is common in the legal profession and is increasingly seen in marketing, technology, and strategy consulting firms...
basis. Out-of-pocket expenses
Out-of-pocket expenses
Out-of-pocket expenses are direct outlays of cash which may or may not be later reimbursed.In operating a vehicle, gasoline, parking fees and tolls are considered out-of-pocket expenses for the trip...
, if requested, are typically covered by the litigant in person
Litigant in person
A litigant in person, in the United Kingdom, is an individual, company or organisation that is not represented in court by a solicitor or barrister, but nevertheless has rights of audience...
. McKenzie friends cannot charge their time to the case at legal rates. A nominal hourly rate is recognised by some courts for the purposes of recovering costs from the other side in the event of a win.
The original McKenzie friend
McKenzie v. McKenzie was a divorceDivorce
Divorce is the final termination of a marital union, canceling the legal duties and responsibilities of marriage and dissolving the bonds of matrimony between the parties...
case in England. Levine McKenzie, who was petitioning for divorce, had been legally aided
Legal aid
Legal aid is the provision of assistance to people otherwise unable to afford legal representation and access to the court system. Legal aid is regarded as central in providing access to justice by ensuring equality before the law, the right to counsel and the right to a fair trial.A number of...
but the legal aid had been withdrawn prior to the case going to court. Unable to fund legal representation, McKenzie had broken off contact from his solicitors, Geoffrey Gordon & Co. However, one day before the hearing, Geoffrey Gordon & Co. sent the case to an Australian barrister in London, Ian Hanger, whose qualifications in law in Australia did not allow him to practise as a barrister in London. Hanger hoped to sit with his client to prompt him, take notes, and suggest questions in cross-examination, thereby providing what quiet assistance he could from the bar table
Bar table
A bar table is a table in a common law courtroom at which advocates sit or stand. It is generally situated between the Bench and the well of the court, where the public sit. Advocates such as barristers sit facing the Bench with their backs to the well...
to a man representing himself. The trial judge ordered Hanger that he must not take any active part in the case except to advise McKenzie during adjournments and must sit in the public gallery of the court
Court
A court is a form of tribunal, often a governmental institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in accordance with the rule of law...
. Hanger assumed his limited role was futile, and did not return for the second day of the trial.
The case went against McKenzie, who then appealed to the Court of Appeal on the basis that he had been denied representation. On 12 June 1970, the Court of Appeal ruled that the Judge's intervention had denied McKenzie of assistance to which he was entitled, and ordered a retrial.
Ian Hanger AM
Order of Australia
The Order of Australia is an order of chivalry established on 14 February 1975 by Elizabeth II, Queen of Australia, "for the purpose of according recognition to Australian citizens and other persons for achievement or for meritorious service"...
QC
Queen's Counsel
Queen's Counsel , known as King's Counsel during the reign of a male sovereign, are lawyers appointed by letters patent to be one of Her [or His] Majesty's Counsel learned in the law...
, the original McKenzie friend, is now a Queen's Counsel at the Queensland
Queensland
Queensland is a state of Australia, occupying the north-eastern section of the mainland continent. It is bordered by the Northern Territory, South Australia and New South Wales to the west, south-west and south respectively. To the east, Queensland is bordered by the Coral Sea and Pacific Ocean...
Bar.
Singapore
In September 2006, the Subordinate Courts of SingaporeJudicial system of Singapore
The full Judicial power in Singapore is vested in the Supreme Court as well as subordinate courts by the Constitution of Singapore. The Supreme Court consists of the Court of Appeal and the High Court. The Court of Appeal exercises appellate criminal and civil jurisdiction, while the High Court...
started a pilot project called the Lay Assistant Scheme in which persons, usually with some legal knowledge, attend hearings with litigants who are not represented by lawyers to advise them on non-legal issues and help them with administrative tasks. The scheme, a modification of the U.K.'s McKenzie Friend system, is intended to assist litigants who are not eligible for legal aid as they have an annual salary exceeding S$10,000 but cannot afford a lawyer. For the litigant to qualify, the other party must be legally represented.
Lay assistants are not allowed to act as lawyers and may not address the court; any breach of court rules may render them liable to a maximum fine of $1,000 or imprisonment of up to six months.
Plans for introducing McKenzie Friends in court proceedings were first announced by Chief Justice
Chief Justice of Singapore
The Chief Justice of Singapore is the highest post in the judicial system of Singapore. The Chief Justice is appointed by the President, chosen from candidates recommended by the Prime Minister. The present Chief Justice is Chan Sek Keong....
Chan Sek Keong
Chan Sek Keong
Chan Sek Keong is the current Chief Justice of Singapore, having taken over from the former Chief Justice Yong Pung How on 11 April 2006. Chan was formerly the Attorney-General of Singapore, before being succeeded by Chao Hick Tin on 11 April 2006....
in May 2006. Students from the Pro Bono Group of the Faculty of Law, National University of Singapore, have been participating in the scheme.
England
In English courts, where a case is being heard in private, the use of a McKenzie friend has sometimes been contentious. This is a particular problem in family courtFamily court
A family court is a court convened to decide matters and make orders in relation to family law, such as custody of children. In common-law jurisdictions "family courts" are statutory creations primarily dealing with equitable matters devolved from a court of inherent jurisdiction, such as a...
hearings, where it has been held that the nature of the case is so confidential that no one other than the litigants and their professional legal representatives should be admitted to the court.
A 2005 Court of Appeal case, In the matter of the children of Mr O'Connell, Mr Whelan and Mr Watson, clarified the law in this area. The result of the appeal has legitimised the use of McKenzie friends in the family court and allowed the litigant to disclose confidential court papers to the McKenzie friend.
Services are now being catered for in England that provide professional Mckenzie Friend assistance, the benefit has been to assist those that cannot afford traditional high street law firm fees or require such a full service with the option of utilizing such assistance but in a varying capacity. Other areas have similarly been exploited including Online Divorce which has meant that the ramification of Mckenzie v. Mckenzie has grown to apply in similar respects to varying fields within the legal sector.