Divorce Finance working group expresses concerns about McKenzie Friends and the need for FDRs

paperworkAll family cases which involve a dispute over finances should go to a financial dispute resolution (FDR) hearing – before the county courts can even make a listing for final hearings, according to a final report from the Financial Remedies Working Group.  The Report also expressed concern at the use of “McKenzie Friends” in family finance litigation.

The working group which was chaired by Sir Nicholas Mostyn QC, one of the most senior family court judges, and composed of judges and family law barristers and solicitors said FDRs would be compulsory in all cases unless a court orders against one – which will only happen in “exceptional circumstances.”

The working group also recommended that accelerated first appointments should be rolled out nationwide. These were piloted last summer in the Central Family Court in London. Divorcing couples will not need to attend an accelerated first appointment – provided they have both agreed to a consent order and both their form Es are submitted.

The report also said that judges should award costs against any party they feel has engaged in litigation misconduct. The report stressed that litigants in person were not immune from having costs awarded against them if they are found to have misbehaved.

There is no obligation to take a solicitor or barrister to court with you.  If you do not take a legal representative you are known as a ‘litigant in person’.  A litigant in person may be allowed to take a McKenzie Friend to court with them.  A McKenzie Friend has no legal qualifications and is not allowed to address the court or ask questions on their client’s behalf.  They may assist with paperwork in court and with preparation of the case outside of court.

The working group voiced concern about the growing use of McKenzie Friends who help litigants in person. It was felt McKenzie friends were useful in helping with documents and for keeping a note of proceedings. The report cautioned, however, that litigants were vulnerable to paid McKenzie Friends who charge for a service that is from “an unregulated, untrained, unqualified individual.”
The Working Group also argued that McKenzie Friends who are permitted to address a court sometimes had a damaging effect on the length and on the tone of the court’s proceedings.

It added that paid McKenzie Friends were also liable to raise false expectations amongst vulnerable litigants that they would be permitted to recover their costs.

Resolution criticised the final report saying that it had not gone nearly far enough in protecting the interests of litigants in person and said it was a missed opportunity to deal with issues faced by average users as opposed to wealthy users of the court.

Concerns about McKenzie Friends have been growing for a number of years and solicitors are increasingly worried that their lack of knowledge – unlike solicitors they do not have to undertake years of regulated training – can slow cases down, leading to increased costs for the parties involved, and unlike solicitors who are heavily regulated by the Law Society, if something goes wrong the clients of McKenzie Friends have no form of redress.

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