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With a little help from my friends

The original ‘McKenzie Friend’ Ian Hanger speaks about the groundbreaking case that led to the establishment of the landmark principle.

Ian Hanger is the original ‘McKenzie Friend’. Levine McKenzie was a client of the small London law firm for which Hanger worked.

McKenzie had been legally aided by the firm during a divorce case but, due to a false statement about his domicile, he lost his legal-aid funding.

As a result, the law firm ceased representing him. On the day before the trial, however, the firm agreed to assist McKenzie on a pro bono basis.

Ian Hanger was the lawyer tasked with assisting McKenzie – though Hanger had not been admitted as a barrister in England. When the case was called, Hanger sat beside McKenzie at the Bar table, though he did not announce himself.

He simply sat there and quietly prompted McKenzie when necessary – and this ultimately led to the birth of the concept of the ‘McKenzie Friend’.

So, how did a young Australian barrister find himself in London in the late 1960s? Ian Hanger had graduated in 1968 and had been immediately called to the Bar in Australia, but decided to spend some time overseas before embarking on his legal career proper.

“While I spent a short period after my arrival in England serving with the Royal Green Jackets, I then found a job at a small suburban London law firm, where I remained working throughout my time in England.

“While I was not admitted as a barrister in England, I attended to whatever legal work my employer asked of me.”

Be my friend

“One of our clients, Mr Levine McKenzie, a Westminster dustman, was of Jamaican origin. He had some linguistic difficulties and had been legally aided by our firm in his defended divorce.

“He lost his legal-aid funding because he had made a false statement about his domicile, which was not the United Kingdom but the West Indies. I had had no contact with him.

“We had ceased to act for him, but on the day before his trial, he made contact with our firm and my employer asked me if I would go to court the following day to help Mr McKenzie, pro bono.

“When the case was called, I went into court and took up a position beside Mr McKenzie at the Bar table. I did not announce an appearance. I simply sat there and quietly prompted him.

“I confess that it did not occur to me or my employer that the judge would object to such a process. After querying my presence, the judge remarked: ‘Well, you have no right to sit at the Bar table. You can sit at the back of the court and help him during adjournments’.”

That’s what friends are for

“Mr McKenzie’s trial took some ten days, but was unsuccessful,” says Hanger. “I read the judgment, looking for an error of law, and formed the opinion that there was none.

“From memory, I think I wrote on the note from my employer asking me to look at the judgment, something that was meant to be facetious, such as: ‘The only appeal is that he didn’t have me’, or ‘would have done better with me’, or something equally trite – and not intended to inspire an appeal.

But it did! I presume that a proper advice was obtained from counsel, but I don’t actually know.”

Mr McKenzie was ultimately successful before the English Court of Appeal, which concluded that the trial judge had erred in disallowing Hanger from giving advice and assistance to McKenzie from the Bar table. By default, Ian Hanger became the legal world’s first ‘McKenzie Friend’.

In certain jurisdictions, including England, McKenzie Friends have become a thorny issue, as they have started charging for their services. In 2014, in Britain, the Legal Services Consumer Panel, under the Legal Services Act, published a short report entitled Fee-charging McKenzie Friends.

By this time, a number of individuals (or, indeed, groups of individuals) were charging fees for acting as McKenzie Friends. The panel interviewed a number of such Friends and reported that some were conducting between 50 and 100 matters per year, while some were earning more than Stg£100,000 per annum. Most had no insurance.

Interviews with these fee-charging Friends showed that they were doing a lot more than what the traditional McKenzie Friend had been permitted to do – and were doing a lot more than had been suggested in the practice guidance document.

My friend of misery

As a result of the most recent Irish recession, our courts have seen a deluge of home repossessions. With a limited civil legal-aid scheme, many lay litigants are seeking assistance from self-styled McKenzie Friends when attending court.

There are concerns in the legal profession that some of these individuals are providing these services for payment. What are Hanger’s views on the threat posed by fee-charging McKenzie Friends, who might be regarded as usurping the traditional role of solicitors and barristers?

“Legal fees are expensive, and there are many people who have a proper dispute that needs to be adjudicated by a court and cannot afford representation.

Legal aid is limited, and litigants in person are common and will probably increase.The track record of McKenzie Friends is anecdotal and to the extent that there has been research, not bad. 

[See: A Study of Fee-charging McKenzie Friends and their Work in Private Family Law Cases.] They do, at least, provide some assistance, and there is an unmet need in the community.

“However, to permit fee-paid McKenzie Friends would implicitly acknowledge the creation of a new branch of the legal profession. In Australia, the respective Legal Profession Acts prohibit a person from engaging in legal practice unless the person is a qualified legal practitioner.

"I assume there are similar prohibitions in Ireland. I completely condemn the practice of McKenzie Friends charging for their services.”

Waiting on a friend

Some universities in Britain have introduced schemes where students act as McKenzie Friends on a pro bono basis. If McKenzie Friends are to stand the test of time, is this the kind of role Mr Hanger sees for them – and does he recommend the introduction of such schemes in Ireland?

“Yes, I understand that schemes like this are in place in England, and I would recommend them. What I would like to see is active engagement by university law schools encouraging the students to become McKenzie Friends (or whatever they end up being called), running workshops to train them in what they can and can’t do, and encouraging pro bono work in their final university year.

“There is a win/win in this. The students gain the courtroom experience and the litigants gain an enormous benefit by having somebody, who is close to being legally qualified, helping them in the courtroom.”

In Australian legal circles, Ian Hanger is well-known as a mediator. Mediation has been a central dispute resolution tool in Australia since the 1990s. In Ireland, we are playing catch-up to a certain extent, with mediation only being seriously considered in recent years.

Friends in low places

Does he have any words of wisdom for Irish practitioners on the benefits of mediation?

“The initial reluctance to embrace mediation is completely understandable, but within five or six years of mediation being introduced in Australia, contrary to expectations, it became more and more popular.

“To suggest mediation to your opposite number was no longer regarded – and is not now – a sign of weakness. Lawyers have developed a new set of skills in the field of negotiation – skills that were not taught at law school until recent times.

“We have reached the stage where many lawyers earn a significant income as mediators, and a great many more earn significant income representing their clients in mediations.

“In my state of Queensland in the early ’90s, there was a three-year delay in the court list. That has since been massively reduced. Some judges have said by way of dictum that they consider that a solicitor would be negligent in failing to advise his client of the availability and benefits of mediation.

“For commercial practitioners, the lawyer’s role begins before a disagreement arises. In the commercial context, you should consider the option of inserting a mediation clause into a contract with a view to resolving disputes amicably, rather than resorting to litigation.

“In the early ’90s, various Australian states introduced the concept of ‘settlement weeks’, whereby trained mediators offered their services at a reduced fee for a particular week to focus efforts on reducing long court lists.

“This involved the court writing to litigants and their solicitors, advising of the availability of this service, and encouraging their participation. It required some administration, either by the court or by the local law society and bar association. Local media gave the concept some publicity.

“The result was that many cases were settled, the public learned about the mediation process, and those lawyers – many of whom had little or no experience in conducting mediations – were able to put their newly acquired skills into practice for more modest fees.”