Is there a difference between a McKenzie Friend and a Litigation Friend?

Posted: 25 May 2023

Friends like these… Explaining McKenzie Friends and Litigation Friends

Any person in Court proceedings who is not legally represented (known as a litigant in person) has the right to have reasonable assistance from a layperson. This person is sometimes called a McKenzie Friend. The litigant in person should inform the court that they are wishing to exercise their right to a McKenzie Friend at the start of the Hearing and identify them. McKenzie friends have no independent right to provide assistance. They are not advocates and cannot carry out litigation.

Litigation friends can be appointed to make decisions about a court case for either an adult who lacks mental capacity to litigate, or for a child. That person may or may not also be legally represented. An adult with a litigation friend is called the ‘protected party’.

Litigation friends can only be appointed in

• Any civil case, except a tribunal,
• A family case,
• A Court of Protection case

If there is no one suitable, willing, and able to be a litigation friend, the Official Solicitor may be appointed. The Official Solicitor is a government body, made up of a team of solicitors and caseworkers.

Who can be a McKenzie or Litigation Friend?

The court can appoint anyone to be a litigation friend. This includes a family member, a solicitor, or a professional advocate. The court will need to check this person’s suitability by ensuring that they can make decisions in a fair and competent way, and that their interests do not conflict with those of the vulnerable person. When applying to be someone’s litigation friend, a certificate of suitability must be filed. This can be found on the government website.

McKenzie Friends also do not have to be legally qualified and can be a family member or friend. There are also various charities which provide McKenzie Friends for free. Some McKenzie Friends will offer their services for a fee. The activities of McKenzie Friends are not regulated, even where they charge a fee.

Why are Litigation Friends needed?

A person involved in proceedings must be able to manage their case. This is called ‘capacity to conduct proceedings. To have capacity, the person must be able to tell their legal representative, if they have one, what they would like to do. They need to be able to make their own decisions and express these to their legal representative. This is called ‘giving instructions’. If they do not have legal representation, they need to be able to complete necessary paperwork and understand what decisions the judge makes.

If they are unable to do these things, they may not have capacity. It is in these cases that the court may find it necessary to appoint a Litigation Friend.

What will a Litigation Friend do?

A Litigation Friend is not a party’s legal representative, even where the person appointed is a solicitor. A further solicitor will usually need to be appointed to represent the party. The Litigation Friend will then give instructions on behalf of the vulnerable person.

A Litigation Friend will need to make decisions in the vulnerable person’s best interests. They will try to explain to the person what is happening in the case and find out what their wishes and feelings are. They will use this information to liaise with the person’s legal representative, gain legal advice and give instructions on their behalf.

What can a McKenzie friend do?

A McKenzie friend can:

• Provide moral support,
• Take notes,
• Help with case papers,
• Quietly give advice. This advice can be regarding points of law or procedure, issues that the litigant in person may want to raise to the court, or questions that the litigant in person may wish to ask witnesses.

What can’t a McKenzie Friend do?

A McKenzie Friend cannot:

• Act on behalf of the litigant in person.
• Manage the case outside of court. An example of this would be signing court documents.
• Address the court, make submissions, or question witnesses.
• Attend a closed court unless the litigant in person has received permission from the court.

Can the court refuse a McKenzie Friend?

In open court, there is a presumption in favour of allowing a McKenzie Friend. A judge has discretion to refuse to allow a McKenzie Friend to assist a litigant in person, however they should give the litigant in person reasons for refusal. The Judge may consider that allowing a McKenzie Friend is not in the interests of justice, however, the presumption in favour is a strong one.

In closed court, where the Hearing is in chambers, in private, or the proceedings relate to a child, there is still a presumption in favour of allowing a McKenzie Friend. However, the litigant in person must justify their presence in court, and receive permission.

The complexity, or lack thereof, of the case, the litigant in person appearing not to need assistance and/or choosing not to have legal representation are not reasons to refuse a McKenzie Friend.

What are the legal duties of a McKenzie or Litigation Friend?

Both types of Friend must maintain confidentiality about the case. McKenzie Friends must also confirm to the court that they do not have an interest in the outcome of the case. Litigation Friends must not have an interest in the case where it conflicts with the interests of the child or protected party. A Litigation Friend must always have the vulnerable party’s best interests in mind.

If you are interested in a confidential chat with one of our family law solicitors regarding how they can support you, or you would like further information on the services we offer, please call 01245 493959 or  send an email.