Legal Services Consumer Panel
The Panel is carrying out a programme of work to investigate the regulatory implications of the anticipated rise in litigants in person – people who represent themselves in court.
Our first area of focus is the emerging market of fee-charging McKenzie Friends. A McKenzie Friend supports litigants in person by providing moral support, taking notes, helping with case papers and quietly giving advice. A McKenzie Friend does not have the right to conduct litigation or act as an advocate, which are reserved activities under the Legal Services Act. However, the courts may grant rights of audience to a McKenzie Friend in the interests of justice on a case-by-case basis. The Panel acted following reports of increasing numbers of McKenzie Friends who charge a fee for this and related services following changes to legal aid eligibility, especially in family cases.
Such McKenzie Friends are unregulated, which has caused consumer protection concerns. We decided to find out more about their services, identify the benefits and risks for consumers and make recommendations about the correct regulatory response. We did this through a website trawl, interviews with McKenzie Friends, listening to the views of stakeholders and by seeking case studies highlighting good and bad practices.
The overall message of the report is that the potential benefits to litigants of fee-charging McKenzie Friends outweigh the potential risks and they should be accepted as a legitimate feature of the legal services market. Indeed, we see that an increase in fee-charging McKenzie Friends is an inevitable consequence of the market adapting to the legal aid reforms. Achieving this acceptance will require a cultural shift and there is an important role for government and senior judges to change attitudes. Equally, we see that McKenzie Friends need to play their part in changing attitudes through effective self-regulation. We think existing tools can be better used to tackle the minority of bad providers and there is a need to educate litigants about the benefits and pitfalls of using McKenzie Friends.
Our second area of focus is unbundled legal services. In its simplest terms, ‘unbundling’ separates a package of legal services into parts, and the client and legal services provider agree to what parts of the package the provider will provide. We wish to find out people’s motivation for using these services, their purchasing behaviour, if they work well, what benefits and risks might be involved, and what safeguards should ideally be in place. We recently published consumer research commissioned in partnership with the Legal Services Board, carried out by Ipsos Mori.
14 May 2014