Assisting Lay Litigants: Recent Guidance

Straitened times have led to an increase in litigation before the courts involving lay litigants or litigants in person acting without formal legal representation. Notwithstanding that such litigants may not have instructed a solicitor or barrister, they sometimes appear with assistance from a non-legally qualified third party. While limited third-party assistance is permissible, there are limits to what those third parties can do – but those limits are often overstepped. Recent practice directions across the various levels of the court (applicable from the start of October 2017) provide important guidance on the scope of such assistance.

McKenzie Friends

In conducting litigation before the courts, lay litigants have historically been allowed some assistance from non-legally qualified third parties to support them in exercising their right of access to the courts. This entitlement was recognised in the English case of McKenzie v McKenzie(1) where it was recognised 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". However, such judicial recognition also circumscribed the limited assistance such a 'McKenzie' friend can give. In particular, McKenzie friends do not have a right of audience before the courts on behalf of a lay litigant and those rights can be enjoyed only by the lay litigants themselves or legal professionals instructed by them.(2)

Pushing the Boundaries

Certain cases have arisen where third parties assisting lay litigants, ostensibly as McKenzie friends, go beyond the narrow scope of assistance that may be given. Consequently, the work of the courts and the interests of the litigants have been hindered on occasion.

Although the courts have been slow to preclude parties from having McKenzie friends assist them, the courts have been careful to stress that parameters do apply. For example, in AIB plc v Aqua Fresh Fish Limited(3) the court observed that a McKenzie friend is "expected to behave in such a manner as reflects the mutuality of respect essential for all players participating in the administration of justice". Indeed, in another case where the applicants had relied on a purported McKenzie friend which the court understood had assisted other lay litigants in other cases, the High Court indicated that it would grant an order (ultimately not pursued) precluding that party from acting as a McKenzie friend (subject...