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Reforming the courts’ approach to McKenzie Friends

Consultation response by The Professional Paralegal Register (PPR)

The Professional Paralegal Register (PPR)

    1. PPR is the voluntary regulatory scheme for Paralegals who work in the unregulated sector in England and Wales. It was launched at the House of Lords in December 2014 after extensive consultations had taken place with The Law Society; The SRA; The  Bar Council; The Bar Standards Board; The Legal Services Board; The Consumer Panel of the LSB; The Legal Ombudsman’s’ Office; CILEX and CILEX Regulation.
    2. A stakeholders’ forum took place in June 2014 with attendance from Skills for Justice; The Ministry of Justice; The Institute of Paralegals; The National Association of Licensed Paralegals; The Society of Willwriters; The Institute of Professional Willwriters; Mc Kenzie Friends; Citizens Advice; The Legal Ombudsman; Law Society for Scotland; The Scottish Paralegal Association; Which?Legal; Co-operative legal; TSI; Council for Licensed Conveyancers; Chartered Institute of Patent Attorneys; Institute of Trade Mark Attorneys; The Voluntary Public Interest Advocacy (McKenzie Friend Association) and the Treasury Solicitors.
    3. The aim of the PPR is to provide a robust regulatory scheme for Paralegals working in the unregulated sector in England and Wales. It has, as one of its regulatory objectives, improved access to justice for consumers who require cost effective and legal advice and assistance. The PPR is a not-for-profit organisation.
    4. The Register is both open and transparent and provides a list of PPR members who are categorised in ‘Tiers’ dependant on their qualifications and experience. The register is accessible to all. The regulatory scheme enables consumers to seek out professionally qualified and ‘regulated’ (by the PPR) Paralegals in the knowledge that they can take advantage of a first tier complaints procedure via a Paralegal’s membership body and a second tier complaints procedure via the PPR that has  a compensation fund available in certain circumstances.
    5. The Legal Services Act 2007 (the Act) allows for the provision of legal services outside the Regulatory Framework and provides the court with discretion to grant permission to conduct litigation or rights of audience to non-authorised persons. This applies to Paralegals, and McKenzie Friends are by definition Paralegals. No other name is required for this group of people.
    6. McKenzie Friends are able to join the Register and be placed into a Tier so that they can be mapped to the requisite standards and benefit from a regulatory scheme. This was received at our recent conference with great enthusiasm by the delegates.
    7. The PPR has a direct interest in the issues raised by this consultation and believes that it can offer both a structured set of professional and practice standards for McKenzie friends as Paralegal Practitioners, who will be required to fulfil suitable criteria to obtain a Paralegal Practising Certificate, specifically aligned to the judiciary’s and consumer’s needs.
    8. The PPR would welcome a further discussion with the JEB to enable us to more fully explain the PPR and how it can assist with this issue. For more information on the PPR please visit https://ppr.org.uk

Introduction

    1. The PPR accepts that it is important that the Practice Guidance (the Guidance 2010) concerning the proper approach that courts should take to the provision of assistance to litigants-in-person (LiPs) via non-lawyer assistants, namely McKenzie Friends, should be reviewed through consultation due to the increase in both the number of LiPs and the number of McKenzies, both voluntary and on a fee-paid basis.
    2. The PPR are grateful to The Lord Chief Justice and the Judicial Executive Board for setting up a Working Group to provide the basis of this consultation and the opportunity afforded to the PPR to take part in this consultation.
    3. We are aware from taking part in the majority of sector discussions, that judges are currently under an enormous pressure due to the requirement for them to assist both LiP’s in their understanding of court procedure and to evaluate whether to allow McKenzie friends to assist in court.
    4. The consultation seeks to address a number of issues raised by the Working Group’s conclusions on the possible reform and replacement of the Practice Guidance. Although a wide range of views were taken from judicial office holders it is vital that the views of those responding to this consultation from both the practitioner and LiP’s perspective are given due regard.
    5. At 1.1 it should be noted that the PPR considers that the consultation should consider the entirety of the role of McKenzie Friends to include pre-litigation advice and assistance and not exclusively focus on attendance at court. The consultation does raise the issue of the increased applications from McKenzie Friends to exercise rights of audience (on behalf of LiP’s), which is allowed under Schedule 3 of the Legal Services Act 2007 (the Act). This is an inevitable and necessary development if consumers are choosing to use a McKenzie Friend or otherwise unregulated provider.
    6. At 1.5 it is suggested that a number of proposals in this consultation could have significant impact and should be implemented on the basis of substantive analysis of evidence. It is the view of the PPR that new rules of court will be required to take into count the significant changes that are required to the training and awareness of professional standards that all McKenzie Friends should have to undertake to protect consumers from poor or wrong advice. However, as McKenzie Friends are such a diverse group, we feel that under the umbrella of the PPR, as Paralegals, a consistent standard can be achieved to enable the judiciary to make very clear decisions regarding permissions granted to those who assist LiP’s based on their ‘Tier’ status and the Paralegal Practising Certificate that clearly defines what that individual is trained and qualified to do.
    7. At 2.9 – 2.11 it should be noted that the PPR believes that the current reserved legal activities that are regulated by the Legal Services Act 2007 should be abolished and replaced with criteria for competency for which the regulated and unregulated legal practitioner can both have the opportunity to fulfil.
    8. At 3.6 the PPR agrees with the statement made by the Consumer Panel of the LSB that:

“…the increased use of MKFs, and particularly fee-paid MKFs, should be ‘recognised as a legitimate feature of the evolving legal services market’, subject to the implementation of measures intended to improve quality standards and training.”

The PPR does not feel that sufficient evidence has been produced to support the recommendation that fee charging McKenzies should be prohibited. This we suggest would not increase access to justice but would increase the unmet legal need of consumers.  There does not appear to be evidence that fee paying McKenzies pose any detriment to consumers or the courts.

    1. Responses to particular questions are set out below. They focus on providing assistance in court and as outlined at paragraph 13 above, the PPR feels that the problems that need to be addressed start at the pre-litigation stage, often in the guise of ‘moral support’, which in some cases can lead to mis-information or ‘personal opinions’ being given to the litigant.

Question 1: Do you agree that the term ‘McKenzie Friend’ should be replaced by a term that is more readily understandable and properly reflects the role in question?

    1. PPR takes the view that the term McKenzie Friend is confusing both within the sector and to consumers. McKenzie Friends come under the umbrella term of ‘Paralegal’ and the PPR has taken great pains to introduce a universal Tier system for Paralegals that allows them to be recognised by their experience, qualifications and other wider knowledge. We have worked with the Legal Ombudsman for over two years to ensure that the Register can accommodate all unregulated legal providers and McKenzies are a group that can fit perfectly within this system.  McKenzies would become ‘Paralegals’ or ‘Paralegal Practitioners’ if they have the requisite knowledge and experience to apply for a Paralegal Practising Certificate.The PPR has set out comprehensive standards for Paralegals and the PPR Register Regulatory Committee are in the process of considering specific standards that can be adopted by McKenzie Friends, who once on the Register will be regulated by the PPR Regulatory Scheme. The courts will then be able to easily identify a PPR Paralegal who has a Paralegal Practising Certificate.

      The PPR is prepared to undertake this work and assist the JEB if they would find this useful.

      We do not believe that any distinction should be made between fee-earning and volunteer MK’s. As a Paralegal Practitioner, they would be free to offer pro-bono work as are solicitors, barristers and legal executives.

Question 2: Do you agree that the term ‘court supporter’ should replace McKenzie Friend? If not, what other term would you suggest?

    1. No. McKenzie friends offer more services than supporting LiPS in court. They are Paralegals and should be called so. A Court supporter could be construed as someone that works for the court.

Question 3: Do you agree that the present Practice Guidance should be replaced with rules of court?

    1. Yes. However, not if the proposed rules remove the ability of courts to exercise their discretion under Schedule 3 paragraph 1(2) and 2(2) to allow unregulated providers to exercise rights of audience or conduct litigation, currently made on a case by case basis, which it appears that it would.

Question 4: Should different approaches to the grant of a right of audience apply in family proceedings and civil proceedings?

    1. There does not appear to be any evidence provided to support a distinction
      and therefore we are unable to comment.

Question 5: Do you agree that a standard form notice, signed and verified by both the LiP and McKenzie Friend, should be used to ensure that sufficient information is given to the court regarding a McKenzie Friend?

    1. This could put a potential burden on LiP’s and this proposed notice could be avoided if McKenzie Friends are Paralegals under the PPR. The approach proposed does not make any distinction where ‘reasonable assistance’ only is given.

Question 6: Do you agree that such a notice should contain a Code of Conduct for McKenzie Friends, which the McKenzie Friend should verify that they understand and agree to abide by?

    1. All Paralegals who are PPR regulated have to abide by a code of conduct and so this already exists. As unregulated providers, whatever their title, there should be consistency of standards. The PPR (which is supported by LeO and have been involved in its development since its inception) remove the burden from the JEB of development, scope and enforcement of such a code.

Question 7: Irrespective of whether the Practice Guidance (2010) is to be revised or replaced by rules of court, do you agree that a Plain Language Guide for LiPs and McKenzie Friends be produced?

    1. Yes. The PPR is prepared to have a distinct area on its website so that
      consumers can find McKenzie Friends and see what each member on the
      Register is able to provide as services whether voluntary or on a fee-paid
      basis.

Question 8: If a Plain Language Guide is produced, do you agree that a non-judicial body with expertise in drafting such Guides should produce it?

    1. Yes. The PPR is prepared to undertake this work to encourage McKenzies to join the PPR and operate within the same standards as Paralegals. The Register Regulatory Committee would oversee this work. Most of the current standards are already in place, all of which were reviewed by the Consumer Panel and the code of conduct is being reviewed so that it will accommodate the judiciary’s requirements. The PPR would welcome input from the consumer panel and other consumer groups.

Question 9: Do you agree that codified rules should contain a prohibition on fee-recovery, either by way of disbursement or other form of remuneration?

    1. For reasons set out above, we do not believe that there is sufficient evidence to support a prohibition on fee-recovery. Paralegals are the Fourth Arm of the Legal Profession and as unregulated providers are able to charge for their services. McKenzies under the PPR are Paralegals.

Question 10: Are there any other points arising from this consultation on that you would like to put forward for consideration?

  1. The PPR has Circa 2000+ members since it went live in July 2015. The PPR fills the gap that the Legal Ombudsman cannot currently fill i.e. hearing complaints from consumers who use unregulated providers. LeO are great supports of the PPR and it seems to us that even if measures are brought in to rename McKenzie Friends and introduce codified rules, the fact remains that unless they are considered to be Paralegals under the PPR, with Paralegal Practising Certificates, the user of their services will have no redress if they fail to provide a professional service. This will confuse consumers who could seek redress if they instructed a McKenzie Friend under the PPR.