A recent report from the House of Commons Justice Committee quoted Sir James Munby President of the Family Division “in the areas where there is no
representation, some kind of support or input is better than nothing. In my experience
most McKenzie friends add value. They tend to be articulate and to have understood what
the case is. Many of them have a surprisingly good grasp of the law, not just book law but
how the courts work.”
You can read the whole report here: http://bit.ly/1ByXLWO
Lord Dyson Master of the Rolls told the committee
"The problem comes not at the hearing stage, but at the pre-hearing stage and the case
management conference stage when the judge first gets to grips with the case, tries to
knock it into shape, see what the issues are, and give directions for the efficient and
proportionate conduct of the litigation. It is at that stage where, if you have lawyers
present, they are used to narrowing the issues, and they do.
He said that is was primarily lack of legal advice, rather than lack of representation, which
meant that “Judges have to spend ages ploughing through page after page of applications
for permission to appeal, very often in almost illegible manuscript, and they take much
longer than would something equivalent from a lawyer. In fact, the likelihood is that a
lawyer would not do it because they would know there was [no legal merit] in it.” The
need for judges to ensure justice is done means they cannot rely on unrepresented litigants’
conception of their cases. Sir James Munby told us: “…litigants in person, particularly in
family cases, think they have a lot of good points. Most of their good points are thoroughly
bad points. It is a slight exaggeration, but they have great difficulty in finding the good
points. You have to go on your own search to find the good points, and that takes up a lot
of time.” Sir James also said that “there is a lot of anecdotal material” that litigants in
person led to hearings in the early stages of family cases taking longer because of the need to explain proceedings to the unrepresented litigant, although Sir James also said “I suspect
there may be truth in the assertion that the final hearing is taking less time…” because
“litigants in person…tend to dry up.”
Lord Dyson agreed with Sir James that hearing times are not a good indication of
whether the litigant in person is able successfully to represent themselves:
I am afraid, that very often litigants in person are totally overawed by the experience
and they just dry up…They put in their witness statement and their case, and you
say, “Now, Mr So-and-So, what do you want to add?” They just say, “Well, nothing.”
They just freeze, frankly. Of course, there are some litigants in person who will go on
talking for ever, but if you balance the two it does not surprise me, if the evidence
shows this, that overall the length of a hearing with a litigant in person is no greater
than with lawyers.
Lord Dyson told us, that while judges make all possible allowance for litigants in person,
they could only go so far: “We still have an adversarial system…I suppose a judge could
say, if the judge sees that there is something in the litigant in person’s witness statement
that is crying out for some elaboration, “Mr So-and-So, I see you say this in paragraph 25
of your statement. I wonder whether…”” but the judge ran the risk of losing the faith of the
other party in the case if he or she was seen to do the opposing party’s job for them.
Sir James also emphasised the use of safeguards, such as hearing directly from the litigant,
even where the McKenzie friend has been given permission to address the court. Steve
Brookner, of the Legal Services Consumer Panel, which supports the greater use of
McKenzie friends, emphasised that judges had the power to exclude disruptive McKenzie
friends.
What a Mckenzie friend does has been previously posted.
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