Contents

Chapter 15
Other participants

McKenzie friends

Introduction

15.6The court environment can be daunting for many litigants, and those who do not have legal representation can often feel isolated and overwhelmed. While there are court staff available to help, they have official roles to attend to and, as such, are not always able to provide lay litigants with all the assistance they would like. And when the hearing begins, a self-represented party is essentially left to fend for him or herself, albeit under the direction of the presiding Judge.

15.7For these reasons, the courts will usually allow unrepresented parties to have a support person with them in court. However, the court can refuse to permit this if it will obstruct the efficient administration of justice.

15.8The support person, known as a “McKenzie friend” after the United Kingdom case that confirmed the legitimacy of the process,221  may sit with the litigant, take notes, and quietly offer suggestions and advice. However, there have sometimes been arguments as to what, if anything, a support person can do beyond this.
15.9In Issues Paper 29, the Commission noted that some McKenzie friends have come to court expecting to be able to address the judge directly on behalf of the litigant, only for this to be denied.222  This can place more pressure on the self-represented party, who may have been operating under the same belief and so not have prepared as thoroughly as he or she might otherwise have.
15.10The Commission also discussed how the role has arguably been abused at times in the United Kingdom when “professional” McKenzie friends, who may be being paid or have their own agenda to push, have been engaged by the self-represented litigant.223  It was also noted that there has been confusion as to whether a lawyer can be a McKenzie friend, in light of barristers’ and solicitors’ ethical obligations to the court.224

15.11The Commission asked for submitters to advise whether they had experienced any problems with the use of McKenzie friends. The Commission also asked whether McKenzie friends should continue to be permitted and, if so, whether there is a need for legislation, regulations or guidelines outlining their role in the New Zealand courts. Finally, the Commission sought feedback as to whether a person should be able to have a lawyer as a McKenzie friend.

Support for McKenzie friends

15.12The submissions the Commission received indicated widespread support for McKenzie friends, albeit so long as they are unpaid and are confined to their current role in court.

15.13The New Zealand Law Society noted that while the overseas experience of “semi-professional” McKenzie friends is not really an issue in New Zealand, problems have sometimes arisen when people who have an interest in concurrent proceedings, or are members of a group with particularly focussed interests, take on the role of McKenzie friend. However, the Law Society summed up the value, and future importance, of a self-represented litigant being able to have a McKenzie friend as follows:

McKenzie friends are able to provide advice and support to a number of the most vulnerable litigants in the court system and accordingly enhance access to justice. Given the new restrictions on legal aid, this support is likely to become increasingly important as many litigants will be unrepresented.

Commission’s view

Entitlement

15.14As a starting point, the Commission considers that the existing position, namely that self-represented litigants should be able to have a support person with them in court unless that person will obstruct the efficient administration of justice, should be retained. The question becomes, then, whether this over-arching principle should be statutorily recognised.

15.15The Commission considers that there is merit in such a provision being included in new courts legislation. A consolidated Courts Act, such as is proposed, should be a fundamental resource for self-represented litigants. They should be able to look at the legislation to see that they are generally entitled to a support person to assist them. It is ironic that, at present, this right is rooted in the common law, which is perhaps the last place that a self-represented litigant can be expected to find it.

15.16Any empowering provision would also need to limit the general right, to take into account situations where, for example, the support person is being disruptive or is attempting to subvert the proceedings for other purposes, or is refusing to accept any necessary confidentiality requirements. Given the wide-ranging circumstances in which a court may need to deny a person the assistance of a McKenzie friend, the Commission sees merit in the United Kingdom test whereby the court may decline a self-represented litigant’s request for a support person where it is satisfied that “the interests of justice and fairness do not require the litigant to receive such assistance.”225

15.17Beyond this general principle, the Commission considers that, as in the United Kingdom, it would be useful for there to be some guidance as to the factors that should and should not be taken into account in determining whether to refuse such assistance. It is convenient to deal with this in the next section relating to the role of the McKenzie friend, as it is not proposed that such guidance be included in legislation.

Role

15.18The question of whether or not the role of (as distinct from the entitlement to) a McKenzie friend should be formally provided for is problematic. It was felt by many submitters that there does need to be some guidance as to the usual role of McKenzie friends and limitations on what they can do, but equally submitters did not want the Commission to be too prescriptive.

15.19There seemed to be a general consensus among submitters that the core role of the McKenzie friend is to sit with the self-represented litigant, take notes and quietly offer suggestions and advice. The Commission agrees, and considers that this should form part of the empowering provision, again on the basis that this information should be easily accessible to the self-represented litigant.

15.20However, the Commission would not want to go beyond this in the empowering provision. For instance, while submitters were also agreed that McKenzie friends should not typically be able to address the judge directly, an element of flexibility is required. For example, there may be rare situations, such as where the litigant has a speech impediment, where it is necessary for the court to grant the McKenzie friend speaking rights.

Legislative recognition

15.21The Commission considers that the best approach would be for the empowering provision to include the following elements:
(a)the general entitlement to a support person;
(b)the test for when the court can refuse to permit this; and
(c)the core roles of the support person (what the support person can always do).

15.22The Commission also considers that guidelines or rules should be developed as to how the courts will approach the refusal test in (b), and when they will allow a support person to go beyond the core roles in (c).

15.23In terms of these, we would support the New Zealand Bar Association’s submission that the United Kingdom Practice Guidance: McKenzie Friends (Civil and Family Courts) could, with modification, be adopted in New Zealand.226  For instance, these guidelines include the factors that should and should not be taken into account in determining whether to refuse such assistance, matters relating to rights of audience and rights to conduct litigation, and remuneration.

15.24Another example is the New Zealand Family Court’s standard form application by the unrepresented party to have a lay assistant, which includes an undertaking that must be signed by the assistant accepting the limits of their role in court, and agreeing to maintain the confidentiality of the proceedings.

A lawyer as a McKenzie friend?

15.25One submitter supported the idea of lawyers acting as McKenzie friends, although no reasons for this were provided. On the other hand, the Law Society and the Bar Association did not, although the former would allow it in exceptional cases.

15.26The Commission concurs with the view expressed by the Law Society that, as lawyers are subject to ethical obligations to their clients and have duties to the court, combining the two could blur the roles and lead to confusion. The Law Society suggested that, if practising lawyers wish to support a person who cannot afford legal representation, the better approach would be for the lawyer to represent the party by acting pro bono as a lawyer, rather than as a McKenzie friend. The Commission agrees.

R76 New courts legislation should provide for the following with respect to support persons for self-represented litigants:
(i)A self-represented litigant’s general entitlement to a support person;
(ii)The court’s ability to refuse to permit a support person where it is satisfied that, in the particular case, the interests of justice and fairness do not require the litigant to receive such assistance;
(iii)The core roles of a support person, namely to sit with the self-represented litigant, take notes and quietly offer suggestions and advice.

R77 Guidelines or rules should be developed as to how the courts will approach the refusal test in R76 (ii), and when they will allow a support person to go beyond the core roles in R76 (iii).

R78 A barrister and/or solicitor of the High Court of New Zealand should not be permitted to be a support person to a self-represented litigant.
221McKenzie v McKenzie [1970] 3 All ER 1034. We note that, while we use the term McKenzie friend in this chapter, we do so only for consistency with Issues Paper 29 and consider that this term should be replaced with “support person” in new courts legislation. It inhibits access to justice to continue to refer to such “lawyer’s terms” and a self-represented litigant who, on turning up at court was asked whether their support person is a “McKenzie friend”, would quite rightly be confused.
222Review of the Judicature Act 1908: Towards a consolidated Courts Act, above n 220, at [15.13].
223At [15.14].
224At [15.15].
225Practice Guidance: McKenzie Friends (Civil and Family Courts) [2010] 4 All ER 272 at 273.
226Practice Guidance: McKenzie Friends (Civil and Family Courts), above n 225.