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The Master of the Rolls and the President of the Family Division have issued new guidance on McKenzie Friends in light of the increase in litigants-in-person in all levels of the civil and family courts.
The guidance is intended to remind courts and litigants of the principles set out in the authorities and supersedes the guidance contained in Practice Note (Family Courts: McKenzie Friends, 14 April 2008).
The guidance sets out what a McKenzie Friend is permitted to do, for instance they may quietly give advice on any aspect of the conduct of the case but they may not address the court, make oral submissions or examine witnesses.
It makes clear the situations in which the court could refuse to permit a litigant receiving the assistance of a McKenzie Friend. Examples of circumstances where this might arise include where the McKenzie Friend "is using the litigant as a puppet", "is directly or indirectly conducting the litigation" or the court is not satisfied that they "fully understand the duty of confidentiality".
Litigants can enter into agreements to pay fees to McKenzie Friends for the provision of administrative assistance in or out of court, the guidance clarifies. However, such fees cannot be recovered from the opposing party.
The guidance also cautions judges not to justify refusing the litigant assistance because a McKenzie Friend "belongs to an organisation that promotes a particular cause".
Families Need Fathers (FNF) broadly welcomes this clarification and the greater recognition of the value of McKenzie Friends to litigants in person. However, they are concerned about paragraph 13 which provides for litigants to be denied the assistance of a McKenzie Friend.
Becky Jarvis, FNF's Policy Officer, said: "We hope that [paragraph 13] does not limit or restrain the support that a McKenzie Friend can provide in Court which generally supports the efficient administration of Justice.
"We are pleased that remuneration is specified, although we believe that to further support the Litigant in Person, costs need to be recoverable if costs are made against the opposing party.
"This is an important step forward for users of the Court Service, who increasingly rely on McKenzie Friends in these difficult financial times," she added.
The Red Book is the acknowledged authority on practice and procedure