Going to court is not something any business owner savours. It can also be a costly exercise, which can hit a small business hard.
Many believe that you must hire a solicitor or instruct a barrister to progress your case for the desired outcome if you go to court. Fortunately, this is no longer true. Since 2013 with cuts to legal aid, a new type of “lawyer” has arisen; the McKenzie Friend and the Paralegal. Although neither are actually lawyers (in the sense that a layman may understand the term), they can help people with legal issues. For example, both can help litigants with court proceedings, as explained by Craig Johnson from NALP.
What is a McKenzie Friend?
The McKenzie Friend right was established in the 1970 divorce case of McKenzie v McKenzie. Mr McKenzie instructed a Mr Hanger to represent him, but the court would not allow it as Mr Hanger was only qualified in Australian Law. It did, however, allow Mr Hanger to sit as an observer taking notes and advising Mr McKenzie during adjournments. Mr Hanger proposed he should be allowed to sit next to Mr McKenzie and take notes and advise quietly, which the local county court denied.
When he lost his case, Mr McKenzie appealed to the Court of Appeal stating he was denied the right to reasonable legal assistance which led to him losing his case. The Court of Appeal ruled a “McKenzie Friend” could be allowed to all Litigants in Person (LIPs) who are unable to afford legal assistance. Furthermore, a judge should only deny a McKenzie Friend whom they deem unsuitable.
Today there are various types of McKenzie Friends assisting litigants within their court proceedings:
- A Professional McKenzie Friend. This is usually someone who charges for their services or someone who is legally qualified and does not know the litigant in any capacity other than as a client. Most Judiciaries only classify a Professional McKenzie Friend as someone with a recognised legal qualification.
- An agency worker can be a McKenzie Friend, for instance, a Mental Health Nurse, Social Worker or a person appointed by the Citizens Advice, who may not have any professional qualifications in law nor is charging the client.
- A McKenzie Friend can be a family member assisting throughout the court case. Technically, a McKenzie Friend can be anyone that the judiciary finds appropriate – and that person doesn’t have to have legal expertise or experience. They are there to provide moral and emotional support and a second pair of eyes and ears.
Finding a McKenzie Friend
A McKenzie Friend, even a Professional fee-charging one, can be someone who is not professionally qualified nor had any other experience besides litigating their own case in the past. Some McKenzie Friends have obtained relevant legal qualifications or they may be an ex-practising solicitor. You can find a list of qualifying McKenzie friends via The Society of Professional McKenzie Friends (SPMF) which vet and attain McKenzie Friends who are qualified to at least an A-Level/Level 3 in law. Other organisations, like the McKenzie Friend Organisation, have a variety of McKenzie Friends some qualified and some not; their aim is to allow the consumer the widest choice.
How does a Paralegal differ?
A Paralegal can be someone who assists a law firm or a solicitor in preparing cases for court or running legal duties within the firm. Or they can operate on their own. The term Paralegal was originally generic as the Paralegal Profession was unregulated until 1987 when the National Association of Licenced Paralegals (NALP) was formed and later (in 2003) the Institute of Paralegals (IOP). Both bodies are self-regulated membership organisations, with NALP being the only body to offer Ofqual qualifications for Paralegals.
Paralegals can do almost everything a solicitor can do – with the exception of what is known as ‘reserved’ activities. These remain the preserve of solicitors.
A lot of Paralegals now attend court on a regular basis to represent clients in small claim proceedings or smaller cases and act as a representative if they belong to a regulated firm which is a part of the Solicitors Regulation Authority (SRA). However, it can be challenging for an independent Paralegal Firm to obtain the same rights. Although most Paralegals who run their own practice have at least three years’ experience, have an Ofqual recognised qualification, and a Licence to Practise – meaning they have been vetted and proven competent – the judiciary will still treat them in accordance with the McKenzie Friend Practise Guidelines, limiting what an experienced Paralegal can do!
What to look for when hiring
When hiring a Paralegal, firstly, ensure they belong to an organisation, like NALP, and they have a Licence to Practise. Secondly, check their qualifications; a “Qualified Paralegal” is someone who has undertaken a certain level of professional Ofqual recognised training and understands their level of law in-depth. Thirdly, understand whether the Paralegal is attached to a Law firm or if they are an independent entity and can assist you through the court process.
Differentiation
The one key difference between a McKenzie Friend and a Paralegal is that a McKenzie Friend (Professional or Not) can be anyone. Whereas a Paralegal is a legally qualified person who can perform most of the same tasks a solicitor can – with the exception of reserved activities. They may be able to represent you in court if the court allows, or if they are supervised by a solicitor.
Many independent Paralegals are asking the judiciary to consider them separate and different from the usual McKenzie Friend roles. It’s hoped that in the near future there will be separately drawn up regulations (like Solicitors and Barristers have) which will help progress the professional further.
More on small business legal matters and legal requirements for running a business.
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