McKenzie Friend: Non-Legal Friend in Court

The rules that govern small claims trials specifically provide that a party is entitled to use non-legal representation at the trial. The small claims procedure is intended to be a relatively informal and cost-effective method of dispensing justice. Allowing a party to be represented by someone who is not legally trained is one of the ways in which these aims can be achieved

The McKenzie Friend

A McKenzie Friend is not technically a representative but simply a non-legally qualified person who sits with a party during a hearing to offer advice and assistance. The McKenzie Friend is not allowed to address the court. The term comes from a divorce case, McKenzie v McKenzie, where the husband was representing himself and wished to have the assistance of a non-legally qualified person at court.

There is a widely recognised presumption that a party is entitled to have the assistance of a non-legally trained person whilst they are at court. If a party does wish to rely on a McKenzie Friend they should notify the judge from the outset of the hearing. A judge will not usually refuse permission unless he believes that allowing the McKenzie Friend would interfere with the administration of justice.

The role of the McKenzie Friend is to assist the party rather than to represent them. This may be of particular relevance at a hearing where it would be usual for a party to have legal representation but for some reason he does not. The McKenzie Friend can help the party conduct his case but cannot conduct it for him. However, it is possible that the line between McKenzie Friend and lay representative could become blurred due to the informality of a small claims hearing. If a party in a small claims hearing is assisted by a McKenzie Friend who has particular knowledge about the case or some aspect of it, the judge might decide that justice can more expediently be carried out by speaking directly to the McKenzie Friend.

The Law on Non-Legally Qualified Representation at Small Claims Hearings

The law on the conduct of small claims hearings is contained in Part 27 of the Civil Procedure Rules and a Practice Direction attached to it. This states that, at the hearing of a small claims trial, a party may be represented by:

• Him - or herself;
• A lawyer - which includes barristers, solicitors or legal executives; or,
• A lay representative. The Practice Direction defines "lay representative" as "any other person".

Other Non-Legally Trained Representatives

In the small claims court there is really no restriction on who may represent a party. The person need not be a "friend". Others who may be able to provide assistance or representation include colleagues, accountants, financial advisers, representatives from trade unions or professional bodies, consumer rights advisors etc.

A non-legally qualified representative might also be a lawyer whose qualifications are not recognised in this jurisdiction. In fact, the McKenzie Friend in the case of McKenzie v McKenzie was an Australian lawyer.

Can a Friend Go to Court in my Place?

The McKenzie Friend cannot take the place of the party and the party must be present at the hearing. Even in small claims cases where a party can be represented by a non-legally qualified person this is only permitted if the party themselves is also present.

The Litigation Friend

There is a distinction to be drawn between a McKenzie Friend and a Litigation Friend. Although these terms may sound synonymous they have very different legal definitions. In law there are, broadly, two categories of people who are not able to bring or defend legal proceedings:

• Minors - anyone under the age of 18;
• Those with a defined mental disorder.

If someone falling into one of these categories is to either issue or defend a claim, they will have to have a Litigation Friend appointed. For example a child, Robert Smith, who wishes to sue a bus driver in relation to injuries suffered in a crash, may sue the driver "by his Litigation Friend, Julia Smith" (his mother).

Appeals in Small Claims Cases

The law on non-legally trained representatives states that they cannot represent a party after judgment has been given or if the case goes to appeal. However, the court has a wide discretion to allow people to address it and can, therefore, override this law if they consider it appropriate to do so. In practical terms courts will often "hear" people who are not technically entitled to address them because it serves the administration of justice to do so.