LAW | COMMENTmarch 25 2019, 12:01am, the times

Unqualified, unregulated legal advisers must be stopped

colm nugent

After a disabled man won £260,000 from a “McKenzie friend” who ruined his medical negligence claim, MPs need to intervene

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Paul Wright was a desperate man in 2008. He had undergone a disastrous NHS operation four years earlier, issued a claim for medical negligence, but still had no legal representation.

He then discovered Troy Lucas, a business styling itself as “The Litigation Company”, whose advertising proclaimed: “Affordable legal advice when you need it!”

Wright had unknowingly entered the world of paid “McKenzie friends”, advisers with no legal qualifications, no rights to represent people in a court, no insurance and no regulators. Yet they charge handsomely for legal advice.

Troy Lucas’ handling of Wright’s claim under the management of its sole principle, George Rusz, was nothing short of disastrous.

As Judge Jennifer Eady, QC, decided last week, Rusz entered into an unlawful contract with Wright in which he paid the business up to £225 an hour for advice Mr Rusz was ill-equipped to give and services he was not competent to provide. Unlike law firms and chambers, Troy Lucas was not required to have insurance and there was no regulator to turn to. Judge Eady ordered Mr Rusz to pay Mr Wright more than £260,000 in damages.

Historically, McKenzie friends have literally been friends or relatives who can, with the permission of the judge, attend court and take notes or help with papers. They are also allowed, according to a ten-year-old court guidance note, “quietly to give advice on any aspect of the conduct of the case which is being heard”.

McKenzie friends are a judge-made phenomenon – the name comes from a 1971 family case – but judges with heavy workloads and long lists can scarcely be blamed if they do not have the time to police them. Indeed, a McKenzie friend who is familiar with basic court procedure and able to articulate an issue or position can play a valuable role in the smooth running of the courts.

Nevertheless, it is doubtful that it was envisaged in 1971 that McKenzie friends would be paid for their services and operate as a business. Access to justice is a fundamental right, but a hollowed-out legal aid budget has resulted in organisations such as the Citizens Advice Bureau and the Bar Pro Bono Unit being overwhelmed with a demand. Paid McKenzie friends have stepped into the void.

Litigants whose encounter with a paid McKenzie friend ends in disaster have nowhere to turn. They cannot seek redress from the Legal Services Ombudsman, the Ministry of Justice, the Solicitors Regulation Authority or the Bar Standards Board. A recent report on McKenzie friends from the Judicial Executive Board said it was “deeply concerned” about their proliferation and suggested that the 2010 practice direction should be updated.

However, it made no recommendations concerning the regulation of paid McKenzie friends or their registration and insurance. Nor have there been any measures put in place to protect the vulnerable and desperate. This is a glaring anomaly that needs to be addressed by parliament urgently.

Colm Nugent is a barrister at Hardwicke chambers in Lincoln’s Inn; he represented Paul Wright