McKenzie Friends For Lay Litigants in the Irish Courts-What You Need to Know

mckenzie-friend

Do you know one guy or girl who knows everything?

You know the lad. He has an opinion on everything, no matter how obscure or complex or unrelated to his sphere of expertise, assuming he has one.

They can be annoying but harmless, until they start giving legal advice. Then the crapola can hit the fan.

Let me explain.

A man in grave danger of losing his home and few acres of land came to me for help a few years ago. He has colossal borrowings on his home and he was hopelessly insolvent.

He hadn’t a hope of being able to repay the outstanding loans. I approached the lender and sussed them out about the situation, what their intention was, how amenable they would be to some type of settlement, and explaining that my client was doing his best, was working and caring for an elderly mother.

This bought a bit of time, time that my client could use in meeting with a Personal Insolvency Practitioner (PIP) to see whether any of the various insolvency programmes might be of assistance in solving his problem and allowing him to hold onto his property.

Things were going fine until he came to my office one day and told me he had attended a meeting of people who are struggling with the banks. At this meeting the main organiser and speaker trotted out a simple solution to the problems of the plain men and women who listened.

This simple solution had a couple of things in its favour:

  1. It was easy to understand
  2. It appeared to be a cunning, technical ploy which might just put the bank back on its arse.

The simple solution, however, had one significant problem:

  1. It was unlawful and fraudulent, and involved my client making sworn statements that were false.

Now, I had a problem.

On the one hand I was offering him a solution that was anything but simple, would be slow and messy and uncertain; on the other hand the so called guru offered a solution that was simple and with one mighty leap my client would be free of the bank’s clutches.

I hadn’t a hope of competing with that fairytale.

So I advised him I was not prepared to engage in something that was a) unlawful and b) likely to make his problems worse, and for this reason he had to choose which route he went down.

The guru went on to become a McKenzie friend and supporter for other people with similar debt problems. But the “solution” he offered was rejected by the Courts on each and every occasion it was put forward.

Not only that, but he got into significant difficulty himself in the Courts.

And the debt spiral for the debtor accumulated at a great rate because there was a series of pointless, hopeless legal motions to the Courts at various intervals. On each occasion the motion was unsuccessful-guess who had to foot the bill for the legal costs for both sides?

You guessed it: my former client. Because they are the rules, and the Court was bound to follow the rules.

McKenzie Friends

A McKenzie friend is someone who is a non-legal person and who provides assistance to a lay litigant (the phrase emanates from a court case in 1970.) Recently, however, the Higher Courts in Ireland have had to issue directions to clarify the role of McKenzie friends.

The reason for this was that frivolous and vexatious cases and motions were coming before the Courts brought by lay litigants with the help of McKenzie friends, and which were clogging up the system and had not hope of success.

The vast majority of them were ill conceived and had no hope of success.

Such was the growth of lay litigants that the Court of Appeal and the HIgh Court felt obliged to issue directions and issued directions as follows: the McKenzie friend cannot address the Court or examine witnesses.

He can provide moral support, take notes, and quietly help with advice. These practice directions came into force on 1st October, 2017. Here’s the Court’s website link to the directions.

They are not permitted to be paid for their services or manage the case outside Court.

Apparently, a number of individuals have set themselves up as advisers and charge for their advice and assistance, and help with drafting affidavits and bringing motions before the Court.

However, they have no legal training and the person carrying the can with a bigger legal costs bill is, you guessed it, the unfortunate individual with the problem in the first instance.

Also, it is a criminal offence pursuant to the Solicitors Act 1954 for a person without legal training to prepare a legal document relating to any legal proceeding for a fee or reward.

The small industry of fake legal advisers which sprung up to service the growth in the number of lay litigants bringing cases to Court fall into two broad categories:

  1. Those charging money and
  2. Those with an agenda against the Courts or banks or have some other agenda which can be canvassed at the expense of lay litigants in Court.

Concerns from Courts: “Abuse of Process”

Justice Mary Irvine from the Court of Appeal has raised her concerns about people taking advice from people who are not qualified and have no understanding of the Court rules etc.

“Day in, day out, this court sees lay litigants pursue appeals and applications which have no prospect of success,” she said earlier this year. The Courts have no option but to award costs against these lay litigants, pushing them further into debt.

Justice Michael Twomey recently imposed restrictions on a lay litigant and her non professional adviser who have been involved in multiple actions to reclaim a farm that was repossessed.

The Judge said the multiple actions involving the Midlands farm amounted to “an abuse of process upon an abuse of process”. He described the litigation about the Portarlington farm as “obsessive, hopeless and vexatious”.

In fact, the High Court had made what is known as an ‘Isaac Wunder Order’ which prevents her taking any further proceedings regarding the farm against ACC and the receiver, without permission from the president of the High Court. Justice Michael Twomey expanded the Isaac Wunder Order to provide that no proceedings could be taken by her against any defendant in relation to the farm without the consent of the president of the High Court.

The Judge also went on to disqualify the McKenzie friend, Mr. William Murphy, from acting as a McKenzie friend in the future. This means, he said, that Mr Murphy, who the judge noted has acted as a McKenzie in other cases and has a “busy practice”, cannot provide assistance or advice to any person in relation to court proceedings unless he obtains the consent of the President of the High Court. (Read a newspaper report of the case here.)

Conclusion

Anyone who provides you with support when you are in difficulty with a legal matter is to be welcomed.

However, you need to ensure that the distinction between support and legal advice is maintained. If you cannot afford a solicitor consider looking for advice from FLAC or Citizen’s Advice or applying for legal aid or assistance from the Insolvency Service of Ireland or MABS.