Junior Barristers as McKenzie Friends – a new form of affordable legal assistance?

The decision in Craig v Slater (2017) NZHC  874 is a very interesting one for access to legal assistance. The case involves two now notorious characters – Colin Craig, a politician, and Cameron Slater, a blogger. My interest here is in the decision to allow a paid McKenzie friend to sit next to Mr Craig and assist him. And not just any paid McKenzie friend, but a qualified and admitted lawyer, Mr Cleary.[1]

On 1 May 2017, Mr Craig made an application that he be supported by Mr Cleary for a three-week long defamation trial beginning on 8 May 2017. So the Judge here (Justice Toogood) was staring down the barrel of a three-week long trial, just one week away from beginning, on an area of law that, as he describes as “a somewhat arcane area of the law which is unfamiliar to many judges”. If this wasn’t bad enough, he had the prospect of lots of media (given the now notorious parties), an unrepresented plaintiff and represented defendants. A little salvation in this dismal scene came in the form of Mr Cleary, a young barrister, not qualified to appear on his own (he has not yet completed his three years) but fully briefed on the matter having appeared as a junior for Mr Craig on a related case. As Mr Cleary could not appear unsupervised, he offered to assist Mr Craig as a paid McKenzie friend.

The arrangement proposed flew in the face of a couple of long standing conventions in New Zealand: (1) no fees for McKenzie friends, and (2) no lawyers acting as McKenzie friends. The Judge, seeing this life line, was not about to allow tradition to stand in the way of a little help from a learned friend. As he rather tellingly says at paragraph 13 of the judgment:

Mr Craig explained that he wished to obtain cost effective assistance from a lawyer experienced in defamation cases and said that he has valued Mr Cleary’s assistance to date. I observe that the written material presented by Mr Craig in relation to interlocutory matters which have arisen so far has the stamp of a qualified and knowledgeable lawyer rather than that of a lay person and I have found the material helpful.

In other words, “we’ve got someone competent here who can help, I need that help, you are going to have to come up with some pretty stunning arguments to convince me he shouldn’t stay”. The Judge goes on to (quite convincingly) sweep aside the first argument made by the defendants about the “perceived ethical ‘difficulties’” which supposedly justify the tradition that a lawyer should not act as a McKenzie friend. Much of the judgment is devoted to this issue and deserving of separate consideration. I was more interested in the second argument.

The second argument was that Mr Craig was actually wealthy and able to afford representation and so shouldn’t be allowed a qualified McKenzie friend. The theory the defendants put forward was that Mr Craig chose to self-represent so that he could cross-examine the key witness he is alleged to have harassed, and therefore continue a campaign of harassment. This goes to the common theory of the underserving self-represented litigant who has chosen to self-represent. The Judge was having none of this, however, dismissing it as “groundless” and also irrelevant. Instead he emphasised that Mr Craig has found himself in need of this form of assistance because of the high cost of legal services:

I do not know whether Mr Craig is wealthy – there is no evidence of his financial circumstances before the Court – but I infer that he incurred substantial costs in the Williams v Craig proceedings. It is unsurprising that he has sought affordable assistance from a person qualified to provide it, at least to the extent of giving advice on legal and procedural matters.

The high cost of legal services is therefore central to the decision. The discussion on whether it is a good idea to pay McKenzie Friends as an alternative is only dealt with briefly. He notes the rule is already flouted [36] and (I think he says) it is outdated [35]. So does this mean that now anyone acting as a McKenzie friend can be paid? It has been allowed in England and Wales to open greater access to assistance in court but it has caused some not inconsiderable concern among the judiciary there. That concern mostly revolves around the unregulated and sometimes unskilled nature of the support being given. However, the Judge here wards off this possibility by using the usual judicial formula: “this case is one which turns very much on its particular and unique facts”.

What the judgment does seem to do however is allow for the innovation of legal services i.e. for other junior members of the profession to provide this sort of service. Citing Winkelmann J’s paper (which I referred to in my last post) he says:

The Judge concluded her thought provoking address by suggesting that it was for the legal profession to pay a critical part in meeting the challenge to provide access to justice for all and that to meet that obligation, the profession would have to innovate. The Judge said that the legal profession would “have to be prepared to initiate and engage in debate about these issues and to question, and if necessary change, its current way of doing business.” I am inclined to think that the courts must facilitate such developments rather than stand in the way of them.

The Judge therefore pitches this case as a potential innovation that would open access to legal representation in cases where it is not currently affordable. As it is assistance provided by someone who is qualified and somewhat experienced, it might be an innovation to be welcomed by all. Some of the self-represented litigants who participated in research I have previously conducted were aware that junior barristers were a sound and relatively cheap source of advice. This judgment opens the way for more of this type of service from the junior bar – a potential win-win-win – for young lawyers wanting experience, for judges wanting some assistance and for self-represented keen for some support and guidance at prices they can afford.

[1] If you aren’t familiar with McKenzie friends, the name McKenzie friend is derived from a case by that name where a qualified Australian barrister, who had no right of audience in the English courts, was granted permission to sit beside one of the parties and offer advice and assistance – so quite similar to this case. A McKenzie friend (except in some limited circumstances) cannot speak on behalf of a party or examine witnesses.