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Case for ban on fee recovery by McKenzie Friends not made, say regulators

The case for a total ban on fee charging by McKenzie Friends has not been made, the Legal Services Board has said in its response to a Judicial Executive Board consultation (JEB).

The JEB launched its consultation in February this year, following a rise in recent years in the number of McKenzie Friends and litigants in person.

In addition to a prohibition on fee recovery (in line with the practice adopted in Scotland), it is proposing the introduction of a code of conduct for those carrying out the role.

Neil Buckley, the LSB’s chief executive, said: "We recognise that the justice system is currently going through a period of significant change and that this brings challenges for consumers and in particular for the Judiciary. We welcome this consultation in light of these changes and support some of the proposals set out in it.

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“However we are not convinced that the case has been made for an outright ban on fee charging McKenzie Friends.”

Buckley added: “We know from our 2016 individual legal needs survey that 64% of consumers with a legal problem do not seek independent assistance in dealing with it. In this context, any moves to restrict consumers' choices should be targeted and based on evidence of detriment.

“We do not believe that the consultation paper adequately explains why a ban is necessary, what harm the ban would address or what the consequences of the ban might be for consumers. In these circumstances we do not support this particular proposal."

The LSB suggested that the proposed code of conduct “could be of value”, but added that there was “insufficient detail about the development, ownership, scope and enforcement of a code” for it to support the proposal. The LSB's full response can be found here.

The Solicitors Regulation Authority has also said it is “unconvinced” of the need to prohibit fee recovery, given the extent of the draft powers put forward in the consultation allowing the court to control the use of McKenzie Friends and limit or prevent their involvement in litigation where it would not further the effective administration of justice.

“A blanket fee prohibition means litigants in person may not get access to support, even where there are no quality issues. For example, it would limit the ability of charities to charge a small amount to cover their costs. The fee prohibition would also be difficult to enforce and would be easy to circumvent,” the SRA warned.

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