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Up until last week, I’d never heard of a McKenzie friend and was only vaguely aware of what a ‘litigant in person’ was. However, as part of a work experience programme I'm participating in, I was requested to attend court to support a litigant in person as their McKenzie friend. This sparked a series of questions that resulted in this article.

What’s a litigant in person?

A litigant in person – also known as a lay litigant – is someone who represents themselves in court with no legal advice or representation from a qualified lawyer. Over the years, there’s been an increase in lay litigants in some areas of law, in particular family, who are typically either unable to afford representation or unwilling to obtain it. The latter can be for a number of reasons, including a distrust of lawyers, a belief that the litigant can handle the legal complexities of the case themselves, or a desire for personal control over the management of the case.

While the courts don’t necessarily encourage lay litigants, they do offer some online advice for them to be as prepared as possible.

McKenzie friends: alternatives to legal representation

The concept of a McKenzie friend dates back to the English divorce case of McKenzie v McKenzie in 1969, in which one of the parties had been entitled to legal aid, but had subsequently had their legal aid withdrawn. With the party unable to finance legal representation, their former solicitors sent the case to an Australian barrister in London who sat with McKenzie, took notes on his case and provided passive assistance.

In essence, that’s the role of a McKenzie friend today: to provide assistance to a party that doesn't amount to legal representation but can still amount to some form of legal aid. McKenzie friends provide litigants in person with an alternative, accessible route to justice and are becoming more widespread, particularly due to legal aid cuts.

Family law and the increase in lay litigants

As mentioned above, family law is the area that has seen the most notable increase in lay litigants. According to the Law Society, in 33% of family court proceedings neither party was represented by a lawyer in 2023. In fact, only in 21% of proceedings were both parties legally represented. This was especially true for divorce and private family law, with the rates of representation in 2023 proceedings being 14% and 19% respectively. It doesn't help that this increase in litigants in person comes alongside increasing court backlogs and delays, as well as underfunding and reduced access to legal advice and representation.

The future of lay litigants

However, some improvements are being made to remedy these issues. One such example is the Pathfinder pilot scheme, which was initially implemented in 2022 in the family courts of North Wales and Dorset. Designed to improve the provision of early legal advice, the Pathfinder approach was intended to improve the family court experience by gathering information and engaging with parties at earlier stages to avoid the need for multiple hearings. In turn, this would reduce the pre-existing strain on the courts as well as improving accessibility of justice. This approach was launched in family courts in Cardiff and Birmingham in the spring of 2024 and is likely to be adopted throughout the rest of the country as soon as it’s practical. Hopefully, the use of such tools represents the beginning of an overall initiative to relieve pressure on the courts, while also allowing for the resolution of important and personal issues, avoiding the need for lay litigants to represent themselves in court at all.

From a legal perspective, the concept of lay litigants – and the network of other terms and notions that interlock with it – is arguable a necessary one. However, from a practical perspective, it seems much fairer that individuals without legal expertise, training or funding should be able to access the help and professional advice they require in order to succeed in their claims or defences – otherwise, what are we here for?

Going forward, I hope to see a decrease in litigants in person, particularly in civil law and in the realm of family law. It's important to have the option to represent oneself in court should one choose to do so; but it's more important that this is a well informed decision made of a client’s complete volition, without any urgency or necessity – not a byproduct of an inability to afford help.