Maintaining Effective and Professional Relationships with Other Legal Professionals, Litigants-in-Person and McKenzie Friends

If an opponent is represented by a legal professional, then an advocate will develop their relationship with that legal professional. This is an easier relationship in the sense that the behaviour of other legal professionals will be prescribed by codes and

rules of conduct, and they will have a good understanding of procedural rules and the requirements of the court.

However, not all opponents will be represented by a legal professional. Some oppo­nents may represent themselves (litigants-in-person) or may have the assistance of a layperson known as a ‘McKenzie Friend'.

The Equal Treatment Bench Book suggests that where a legally qualified advocate represents a party, but the other party is a litigant-in-person, the judge should invite the advocate to make closing submissions first so that the litigant-in-person can see how advocacy should be conducted. As such, legally qualified advocates should be prepared for the court to depart from normal conventions when appearing opposite a party who is acting as a litigant-in-person.

In the civil courts the judiciary have published a helpful guide for litigants-in-person known as A Handbook for Litigants-in-Person that provides a summary of the key procedural rules and the structure of litigation.

In addition, the Equal Treatment Bench Book includes information for judges on how to assist litigants-in-person to conduct proceedings but in an even-handed way. This guidance applies to both the criminal and civil courts.

A ‘McKenzie Friend' is usually an unqualified person who assists the litigant in per­son (see McKenzie v McKenzie [1971] P 33). The court has issued guidelines regard­ing the conduct of litigants-in-person and McKenzie Friends in court. For example, the 2010 Practice Guidance: McKenzie Friends (Civil and Family Courts) provides that whilst a litigant-in-person has a right to reasonable assistance from a layperson there is not a corresponding right of a McKenzie Friend to provide assistance.

The Practice Guidance also states at para 4 that a McKenzie Friend cannot sign court documents on behalf of a litigant-in-person or address the court or examine witnesses.

The Practice Guidance recognises the right of a McKenzie Friend to charge a fee to the litigant-in-person (see paras 27-30) but the fees cannot be recovered from the opposing party without permission of the court.

The Practice Guidance also provides that the McKenzie Friend should contact the court indicating a wish to act as a McKenzie Friend and provide a copy of their CV setting out their relevant experience and confirming that they understand the role of a McKenzie Friend. They will be bound by a duty of confidentiality and must not have a conflicting interest in the case. A McKenzie Friend's application is less likely to be approved by the court if the case is being heard in ‘closed court' (private proceedings in chambers or where the proceedings involve sensitive information). The court does, however, have the power to grant a McKenzie Friend the right to offer further ‘reasonable assistance' (including exercising a right of audience) to the litigant-in-person if the case and cir­cumstances justify this (see paras 5-8 and 18-26 of the Practice Guidance 2010).

If a McKenzie Friend is permitted to assist a litigant-in-person, they do not acquire rights of audience and cannot conduct the litigation. They can merely provide moral support, advice and guidance to the litigant (including taking notes) but the liti­gant-in-person must conduct the litigation themselves and speak to the judge.

In Leigh Ravenscroft v Canal and River Trust [2016] EWHC 2282 a McKenzie Friend (Mr Moore) sought rights of audience to act for a litigant-in-person in a dispute relating to the seizure of a canal boat by the Canal and River Trust and the imposition of a penalty by way of licence fees. The court had to consider all the circumstances in the case including representations that the litigant-in-person was unable to conduct proceedings on their own behalf. It was argued that this was because the litigant­in-person was illiterate. A further argument was that the litigant-in-person was so emotionally involved with the facts of the case he would be unable to present his own case calmly. Whilst noting that rights of audience to McKenzie Friends would only be granted in exceptional circumstances, the court held that when deciding on whether to grant a McKenzie Friend rights of audience, it was necessary to consider both the litigant-in-person's personal circumstances and the context in which the application for the rights of audience arises. Mr Moore was granted permission to act as an advocate on the understanding that it was permission that was not finite and could be withdrawn at any stage.

If an advocate has an unrepresented party as an opponent, it may be prudent to ensure as a matter of courtesy that the litigant-in-person is aware of the Litigants-in- Person Handbook and that they can also seek advice from the Personal Support and Citizen's Advice Bureau located in the High Court (civil cases only) or use a McKenzie Friend to offer assistance. Advocates should not seek to take advantage of the lack of legal knowledge of a litigant-in-person or a McKenzie Friend.

An advocate should never mislead or attempt to mislead an opponent or other legal professionals and should always act fairly in order to maintain trust (see SRA Standards and Regulations 1.2 and 1.4). An advocate should always provide requested information (that is not privileged or otherwise protected) to other solicitors within a reasonable period of time on request and make appropriate enquiries in order to progress the client's case.

An advocate should as a matter of professional courtesy ensure that they confirm any such facts or criticisms if these are to be made the basis of an appeal. However, an advocate must also remember that there are competing responsibilities and obligations in relation to confidentiality that may prevent full disclosure by other solicitors.