A McKenzie Friend primarily assists the litigant in person, but can operate when solicitors are acting as well. This might seem strange, however when delivering a legal case, of course you have the legal arguments, but equally you have the social issues as well. Further you might want your own expert negotiator in bed with your legal team and explain matters as they are being delivered in court.
This person does not need to be legally qualified, as the crucial point is that litigants in person are entitled to have assistance, lay or professional, unless there are exceptional circumstances.
Their role was set out most clearly in the eponymous 1970 case McKenzie v McKenzie.
Although in many cases a McKenzie Friend may be an actual friend, it is often the case that someone with knowledge of the area, and the trend is heavily in favour of admitting McKenzie Friends. They may be liable for any misleading advice given to the litigant in person but that advice is not covered by professional indemnity insurance.
The role is distinct from that of a next friend or of an amicus curiae.
McKenzie v. McKenzie was a divorce case in England. Levine McKenzie, who was petitioning for divorce, had been legally aided but the legal aid had been withdrawn before the case went to court. Unable to fund legal representation, McKenzie had broken off contact with his solicitors, Geoffrey Gordon & Co. However, one day before the hearing, Geoffrey Gordon & Co. sent the case to an Australian barrister in London, Ian Hanger, whose qualifications in law in Australia did not allow him to practise as a barrister in London. Hanger hoped to sit with his client to prompt him, take notes and suggest questions in cross-examination, thereby providing what quiet assistance he could from the bar table to a man representing himself. The trial judge ordered Hanger not to take any active part in the case (except to advise McKenzie during adjournments) and to sit in the public gallery of the court. Hanger assumed his limited role was futile and did not return for the second day of the trial.
The case went against McKenzie, who then appealed to the Court of Appeal on the basis that he had been denied representation. On 12 June 1970, the Court of Appeal ruled that the judge's intervention had deprived McKenzie of the assistance to which he was entitled and ordered a retrial.
Ian Hanger AM QC, the original McKenzie Friend, is now a Queen's Counsel (QC) at the Queensland Bar.