High Court judgment reignites McKenzie friends controversy
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Marc Bloomfield
A recent High Court judgment has reignited the debate on whether unqualified legal advisers should be banned from the courts.
Paul Wright suffered permanent disabilities when three plastic bags were left inside him after an operation. He sought advice from George Rusz, a non-legally qualified adviser or McKenzie friend, as they are commonly referred to.1Originally the term referred specifically to someone accompanying an individual in court, but it is now used more broadly. Rusz gave advice on the case, which was eventually settled for £20,000, but due to mistakes in the way he had conducted the claim, £75,000 in costs were awarded against Wright.
Represented by the solicitors’ firm Leigh Day, Wright brought a claim for negligence against Rusz and his firm, Troy Lucas. The High Court held that, due to negligent advice, Lucas had not been able to pursue his case fully and that because Rusz and his firm had held themselves out to be ‘legal professionals’, they should be judged by the same standard as legally qualified advisers. The court ordered that they should pay Wright damages of £263,759 plus £70,000 in costs (the reserved judgement was released to the parties on 18 March 2019).
Following the judgment, Leigh Day partner Emma Jones, Wright’s solicitor, said:
This is the first case on this issue since the ruling in Freeman v Marshall & Co [1966]. This ruling is important as it establishes that if individuals hold themselves out as competent legal advisers they will be held to the standards of a competent legal advisor and if they do not reach those standards they can be liable.
Bob Neill MP, the chair of the Commons Justice Select Committee, has called for a prohibition on paid McKenzie friends. He believes the judgment lends support to ‘the conclusion that I have drawn from all the evidence [the Justice Committee] has heard about unregulated paid McKenzie friends, that it is time for parliament to bite the bullet and ban this unscrupulous practice’.
After consulting for three years on a possible ban on paid McKenzie friends, the lord chief justice, Lord Burnett, and the Judicial Executive Board (JEB) concluded that it was a matter for the government to decide. They had initially appeared to favour a ban, but as reported in their consultation response published in February this year (Reforming the courts’ approach to McKenzie friends: consultation response), many respondents were opposed, arguing there was no evidence to support a ban as the courts had sufficient powers to control non-legally qualified advisers and an outright ban would put many litigants in person ‘in a worse position’ (page 28).
Commenting on Neill’s call to ban McKenzie friends, LAG director Carol Storer said: ‘Due to the cuts in civil legal aid and the rising costs of civil litigation, this is an issue which will not go away. An outright ban would be difficult to impose, though. The government needs to carefully consider how to protect members of the public from the sort of negligent advice Paul Wright experienced, while preserving access to justice.’
 
1     Originally the term referred specifically to someone accompanying an individual in court, but it is now used more broadly. »

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