The Presidents of the Circuit Court, High Court and Court of Appeal signed a practice direction on the role of McKenzie Friends in legal proceedings which came in to force on the 1st of October 2017.

A McKenzie friend is a lay man, devoid of legal qualifications who may assist a litigant in Court.

The practice directions appear to be as a result of a recent Court of Appeal decision, Butler and Butler v Nelson & Co Solicitors [2017] IECA 149. That case concerned, an ex-solicitor acting as a McKenzie Friend to the Plaintiff, Mr Justice Peart commented that the McKenzie Friend had “overstepped the mark” in providing assistance to the Plaintiff. He noted that the role of a McKenzie Friend is one that is “passive and limited as to not unreasonably interrupt the hearing”.

As per the practice directions a lay litigant can obtain “reasonable assistance” from a McKenzie Friend. Reasonable assistance is not defined but the practice directions sets what the McKenzie Friend can do:

  • Provide moral support for litigants;
  • Take notes;
  • Help with case papers, subject to the provisions of Section 58 of the Solicitors Act 1954, as amended, which makes it a criminal offence for an unqualified person, as defined in that Act, to prepare a document relating to any legal proceedings either directly or indirectly for or in expectation of any fee, gain or reward; and
  • Quietly give advice on any aspect of the conduct of the case.

As per the practice directions the McKenzie Friend cannot do any of the following:

  • Address the Court, make oral submissions or examine witnesses or otherwise conduct litigation;
  • Receive payment for their services’;
  • Act as the litigants’ agent in relation to the proceedings; or
  • Manage litigants’ cases outside Court.

In exceptional circumstances the Court may permit a McKenzie Friend to address the Court and the Court also has the power to refuse to allow the assistance of a McKenzie Friend if, the Court is satisfied that the interests of justice and fairness do not require the litigant to receive such assistance.

If a Court allows the litigant to receive assistance from a McKenzie Friend the Court can withdraw the assistance if, in the Court’s opinion, the administration of justice is being impeded by the McKenzie Friend.

Only one McKenzie Friend may assist a litigant in Court at any time.

Breda Sheahan is an Associate Solicitor in the Commercial Department of FitzGerald Solicitors, located at 6 Lapps Quay, Cork.

 

 

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