The long overdue introduction of Practice Directions HC72 & CC19 comes after growing concern among judiciary about lay litigants taking legal advice from people with no legal qualification, thus incurring more debt for the lay litigants and clogging up already heavily congested court lists, slowing down the courts system.
The notion of a McKenzie friend derives from the English case of McKenzie v McKenzie [1970] 1 P 33 where it was held:
"Any person, whether he be a professional man or not, may attend as a friend of either party, may take notes, quietly make suggestions, and give advice; but no one can demand to take part in the proceedings as an advocate, contrary to the regulations of the court as settled by the discretion of the justices."
The concerns of the judiciary were expressed recently by Mr. Justice Peart of the Court of Appeal when he stated the role of a McKenzie Friend ("MF") "is a passive and limited role so as to not unreasonably interrupt the hearing” . In this case Peart J held that the MF had "overstepped the mark" by constantly interrupting the Plaintiff, hindering the interaction between the Court and the Plaintiff.
The new rules as issued by President of the Court of Appeal, Mr. Justice Sean Ryan and the President of the High Court, Mr. Justice Peter Kelly and most recently endorsed by President of the Circuit Court, Mr. Justice Raymond Groarke allow MFs to provide "reasonable assistance" which includes providing moral support, taking notes, helping with case papers, and quietly giving advice on the conduct of the case.
The new rules reiterate that MFs have no right of audience before the court, except in exceptional circumstances where so permitted by the court, which will be rare. The court also retains the power to refuse to permit MFs assistance; it may also regulate the manner in which assistance is provided.
The Practice Directions also draw attention to Section 58 of the Solicitors Act 1954, as amended, which makes it a criminal offence for an unqualified person, as defined, to draw or prepare, any document in relation to any legal proceeding for a fee. Ms. Justice Mary Irvine of the Court of Appeal recently expressed concern with this issue when delivering judgment in a case before her when she stated : "Day in, day out, this court sees lay litigants pursue appeals and applications which have no prospect of success" which ultimately leads to courts awarding costs against such litigants "thus pushing them further and further into debt", as a result of taking incorrect advice from people with no legal qualification and "no real understanding of the law or the rules of court".
The Practice Directions are a much welcome restatement of the principle that an individual is obliged to represent themselves as a lay litigant if they do not formally instruct legal representation.
Practice Directions HC72 & CC19 came into force on 01 October 2017.
To see:
(i) the Practice Direction HC72 please click here
(ii) the Practice Direction CC19 please click here
