Advice on how to select a McKenzie Friend and what to do with him or her once you have found one.
Selecting a McKenzie Friend
You may take to court as a McKenzie Friend an inexperienced close friend, or a specialist with considerable experience.
You are advised to find someone with experience and a successful track record. Some McKenzies charge considerably for their services, but this is no guarantee of quality, and some don’t charge at all, though you will be expected to pay their expenses.
Try to get a recommendation before committing yourself to a particular McKenzie; the best way to find one who will assist you is to contact a reputable organisation which can put you in touch with a McKenzie, and which has a good support structure and an internet forum on which you can exchange advice. A number of organisations will be able to put you in touch with a good one although some groups will insist you join and pay the membership fee before they will help.
Note: that McKenzies who are part of a network may discuss your case with others either in order to get you better advice or so that a lesson learnt in your case can be used to help other parents. Sometimes they may be so upset by a case they just need to talk to someone.
If you can’t find an experienced McKenzie your priority should still be to ensure that you do not go to court on your own. You should attend with a trusted friend, but this must not be anyone with an interest in the proceedings. Avoid family members and never use a new partner or you may provoke the other party and have your McKenzie barred from the court.
If you have a choice of friends you should choose someone who can be:
· Impartial and able to focus on the facts of the case;
· Calm and even-tempered, and able to keep you from emotional outbursts;
· Organised and efficient and able to take accurate notes.
Here are our tips on the use of a McKenzie Friend:
· Ensure that your McKenzie knows the law and the rules and abides by them. McKenzies do not always act correctly and this could prejudice your case; remember in particular that any correspondence to the Court must be copied to the other party. There is no agreed code of conduct yet for McKenzies, but at the very least you should establish that yours has read the most recent President’s Guidance (see ‘What can a McKenzie Friend do?’);
· Find out as soon as possible who the judge will be;
· Write to him or her asking leave for your chosen McKenzie to assist you (remember that a McKenzie should have no personal interest in the case and therefore should not be a relative, although see Clarkson v Gilbert). Insist that if you are not given leave you will decline to take part in proceedings and will instead appeal to the Court of Appeal – and attach to your letter a reasoned submission with reference to the President’s Guidance; your letter must include:
Ø Your case reference number;
Ø The fact that you intend to represent yourself aided by a McKenzie;
Ø Your McKenzie’s name and relevant experience;
Ø Confirmation that your McKenzie has no personal interest in your case and understands the rules governing the use of a McKenzie;
Ø A copy of the Practice Direction: President’s Guidance: McKenzie Friends.
· If the judge orders a separate hearing on the McKenzie issue and refuses your application then apply immediately to the Court of Appeal which is likely to expedite the matter to be heard in time before the hearing;
· If the judge only deals with the issue on the day of the hearing and you are refused your McKenzie, decline to take part and apply immediately to the Court of Appeal;
· If the judge says that he wants to see the parties alone insist that the Respondent’s counsel is also debarred from the courtroom; otherwise insist that if counsel is there your McKenzie must also be (equality of arms);
· Read the preceding as an appeal to a Circuit Judge if the trial is before a District Judge;
· The judge will be under pressure not to be seen to be wasting valuable court time by aborting a hearing or risking a further hearing;
· Do not be afraid of standing up to judges for your fundamental rights and those of your children; if you are refused leave to have a McKenzie sitting with you or are hampered in any way, walk out and appeal.
A number of McKenzie Friends are charging for their services. This does not guarantee that they are experienced or any good, and we would advise caution. Don’t assume that because one charges highly he is better than one who doesn't. We've encountered some terrible advice from some very expensive McKenzies.
These high charges are putting pressure on the whole principle of the McKenzie as a lay advisor; many in the judiciary are demanding that McKenzies should be subject to a disciplinary code, that their fees should be regulated and that they should be under an obligation to provide indemnity to protect the Litigant in Person if they make a hash of it or are negligent. If McKenzie Friends or their parent organisations do not take this action themselves, it is possible it will be imposed on them from above, or that the use of McKenzies will be severely curtailed.
If your McKenzie charges read the section of the President’s Guidance on Remuneration (see ‘What can a McKenzie Friend do?’), and check that he is only charging for what he is entitled to charge for.
If your McKenzie doesn’t charge for his services you must offer at least to cover his expenses, including travel costs and the costs of any accommodation he may need if you cannot put him up yourself. Also offer to pay for stationery and telephone calls, etc.
The Bottom Line
It is up to you to learn your rights and the relevant law; even a solicitor will not do everything for you, especially where research into recent case law is concerned. Read as much as you can about your own situation and keep up-to-date with recent precedents and developments; the best way to do this is through an internet forum like Wikivorce. The information you need is available, but you will need the help of the people on a forum to guide you in the right direction. Remember: your children are no one’s responsibility but your own.
Learn about how solicitors and barristers work and get to know how they think. They will try to take control of the case and stay in control, so throw them as many fast balls as you can; they will certainly try to exploit your relative inexperience. Use that to your advantage: go to court fully prepared, but act dumb; the court will not expect you to know all the correct procedures and will cut you far more slack than the lawyers acting for your represented ex. You can exploit this, for example, by filing statements late or introducing surprise witnesses, but don’t carry this too far. The other side will try the same, but you are more likely to get away with it.
More and more litigants are representing themselves and the courts are slowly getting better at handling this; acting as a Litigant in Person will not only help you; it will also help the next litigant.
There will be occasions when your McKenzie won’t be able to attend court with you. In such circumstances don’t be bullied into accepting on-the-spot decisions and ask the court for an adjournment so that you can get legal advice or attend with your McKenzie at a later date. If you are refused, appeal. You have the right to representation and a fair hearing.