The Bar Standards Board has broken rank with other regulators by calling for a ban on paid McKenzie friends who conduct litigation or a right of audience.

Responding to a consultation by the judiciary, the bar regulator argued that allowing McKenzie friends to charge for reserved legal activities would essentially ‘be creating a new type of legal service provider, who would not be regulated’.

While the Solicitors Regulation Authority and the Legal Services Board have said that the case for a ban on paid McKenzie friends had not been made, the BSB said allowing them to charge would ‘undermine both the concept of an authorised person in relation to reserved legal activities, and the Legal Services Act 2007 itself’.

The bar regulator added: ‘It also presents a significant risk to those using their services, as users of those services would lack protections and the ability to seek redress.’

However the BSB said that McKenzie friends who provide general support, rather than conducting reserved activities, should not be prohibited from charging a fee.

It said restricting those providing these services from charging would not make sense and would ‘limit consumer choice and stifle competition in the market’.

The regulator also put forward an alternative plan whereby a McKenzie friend wishing to exercise a right of audience or right to conduct litigation would have to pay an application fee to the court as a ‘light step’ towards regulation.

It said the fee could help fund the court, help improve access to justice or could be used as a source of redress for those who have negative experiences of McKenzie friends.

The bar regulator also said that it would be prepared to explore taking responsibility for some form of the regulation of McKenzie friends, and will consider further possible steps upon the outcome of the consultation.

Meanwhile the BSB said it supported proposals to introduce a code of conduct and to replace the present practice guidance with rules of court.

But while the judiciary’s draft rules of court suggested that McKenzie friends should be allowed during periods when litigants are not legally represented, the regulator said the rules should allow people to use McKenzie friends even when someone has legal representation.

It said: ‘Some litigants may benefit from someone who can provide assistance and help inform them about the court process, when legal representatives have other roles to play.’