The Perils of Not Using a Qualified Solicitor
A McKenzie friend can be defined as someone who assists litigants in person in Court. They do not need to have any qualifications, they are unregulated and do not need to have insurance.
The number of McKenzie friends has increased significantly since 2013 when Legal Aid became unavailable for many individuals. Further, it is a topic which has become more important, especially since the High Court ruling earlier this year found an unqualified legal adviser, who held himself out to be a legal professional, was held to be professionally negligent.
The background of this case is that the Claimant became permanently disabled when three plastic bags were left inside him after an operation. He sought the advice from a McKenzie friend who held himself out to be a legal professional. However, due to the advice he received, the Claimant did not obtain evidence to support his injuries and his claim settled for just £20,000. The Claimant then had to pay £75,000 towards the Hospital’s legal fees due to the legal advisers conduct throughout the matter. Consequently, he sought to bring a claim against his legal adviser, the McKenzie friend.
Whilst they argued that they did not owe the Claimant a duty of care, the Defendants (both the adviser and the firm he was employed by) were ordered to pay over £260,000 in compensation and over £73,000 in legal fees to the Claimant. This was to compensate the Claimant for the amount that he would have received by way of compensation from the Hospital in his clinical negligence claim, if he had been advised properly.
This case is significant, as it proves that if individuals hold themselves out as being legal advisers, they will owe their client a duty of care and will be held to that standard. This is clearly a positive step as it should reduce the number of McKenzie friends from persuading those who are potentially in a vulnerable position to use them (if they are unable to afford the cost of a solicitor) by stating that they have the same experience as a qualified solicitor.
However, this case also highlights the need for individuals to use solicitors who have the right expertise. As such, anyone who is considering whether to bring a Court claim, or are having to defend themselves against an action brought against them should seek advice from specialist solicitors.
Moreover, clients and individuals should realise that unlike regulated solicitors or barristers, McKenzie friends will almost certainly not be insured for their mistakes or negligence, and so if like the case referred to above, a substantial award is made against a McKenzie friend for their poor advice, you have to consider very carefully if they could afford to pay it.
It is also a criminal offence for someone who is not a lawyer to “conduct litigation” or to act as an advocate unless the court has given permission.
If you need any help with a litigious legal matter or you have suffered any type of clinical negligence or negligence by using a McKenzie friend, please do get in touch with us 24/7 on 03300 585 222
Isobel Wooffitt is a trainee solicitor in our experienced Corporate & Commercial department.
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