Insolvency Update: Lay Litigants and McKenzie Friends – A Positive Reaction to a Recent Trend
11 October 2017
A recent practice direction (HC72) has provided important guidance on the role of a “McKenzie Friend” in assisting lay litigants before the civil courts.
The traditional role of a McKenzie Friend
When dealing with a case involving a lay litigant, courts tend to afford the litigant some latitude on formal procedure in recognition of the overarching right of access to the courts. As a result, the presence of a ‘McKenzie Friend’ has become a common feature of cases involving litigants in person.
The term “McKenzie Friend” originates from an English case, McKenzie v McKenzie. In this case, the appellate court concluded that the trial judge was incorrect in refusing to permit a friend to assist Mr McKenzie. The court expressed the view that “…any person, whether he be a professional man or not, may attend as a friend for either party, may take notes, may quietly make suggestions and give advice.”
The Irish courts have also accepted this general position. However, the Supreme Court has emphasised that the right of audience before it may only be enjoyed by the litigants themselves, their solicitor, or counsel instructed by their solicitor. A McKenzie Friend has no right to address the court unless invited to do so.
A trend of straying beyond the role
With the high volume of cases involving distressed borrowers before the civil courts in recent years, there have been an increasing number of cases where one of the parties appears without legal representation. In a minority of those cases, certain McKenzie Friends have been a hindrance to the courts rather than benefiting the parties to the proceedings.
In the recent decision of Butler and Butler v Nelson & Co Solicitors, the court indicated a reluctance to refuse an application for the assistance of a McKenzie Friend but it clearly stressed the limitations of this passive role and the necessity that a McKenzie Friend understands their role and acts appropriately.
In Allied Irish Banks plc v Aqua Fresh Fish Limited, the court focused on the necessity of proper conduct on the part of a McKenzie friend stating that he or she is “…expected to behave in such a manner as reflects the mutuality of respect essential for all players participating in the administration of justice”’
A more rigorous approach
In Smith v ACC Loan Management Limited & Anor the Court found that the proceedings before it amounted to a clear and obvious abuse of process. In his judgment, Mr Justice Twomey voiced particular concern that in bringing the proceedings the applicants had relied on the advice and assistance of a McKenzie Friend who the court understood advised numerous other lay litigants on matters in which he had no direct involvement.
The court indicated that it could grant an order prohibiting this individual from acting as a McKenzie Friend for any other person without prior leave of the President of the High Court or any other judge nominated by him. Such an order would fall under the court’s inherent jurisdiction to ensure that the process of the court is not abused. The order was ultimately not sought in the case, as the defendants indicated that they did not wish to “throw good money after bad” by pursuing such an order or defending such an order when granted and subsequently appealed.
1 October 2017 – a new practice direction
Practice Direction HC72 now makes it clear to all concerned that a McKenzie Friend:
- may not receive any payment whatsoever for their services;
- may not act anonymously;
- has no right of audience; and
- has no right to conduct litigation.
The Court may also withdraw its permission for a McKenzie Friend to assist a litigant if it is of the opinion that the administration of justice is being impeded by him or her.
The more rigorous approach from the judiciary coupled with the Practice Direction reflects a welcome development in hindering the actions of a small group of individuals who act as “professional” McKenzie Friends and charge a fee for their services.
Many of these individuals invariably have no legal qualifications, operate completely unregulated and effectively serve only to disrupt the administration of justice. This can often place a heavy burden on court resources. In addition, a “professional” McKenzie Friend is, unfortunately, a role that is open to abuse by those who would seek to take advantage of vulnerable litigants for their own financial gain.
The application and enforcement of the Practice Direction should assist in minimising the disruptive and unhelpful elements of the legitimate role that a McKenzie Friend can have for those appearing without the benefit of legal representation.
  3 WLR 472, Sachs LJ
 Coffey & Ors v The Environmental Protection Agency  2 I.R 125
  IECA 149
 Allied Irish Banks plc v Aqua Fresh Fish Limited  IECA 77 at paragraph 29 (McKechnie J)
  IEHC 505