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Lord President softens rules on Scottish McKenzie Friends, remuneration issue still out of step with England & Wales

19 Jul

Lord Hamilton 2Scotland’s Lord President, Lord Hamilton. LORD HAMILTON, Scotland’s Chief Judge has written to the Scottish Parliament’s Petitions Committee informing MSPs of a slight softening of the requirements of McKenzie Friends or ‘lay assistants’ applying to assist unrepresented party litigants in Scotland’s Court of Session. However while the changes proposed to the terms of who can be a McKenzie Friend in Scotland are welcome small steps, there are still a number of issues yet to be settled to bring Scottish Courts into line with the rest of the UK, after McKenzie Friends first came into existence in an English courtroom forty years ago.

The changes, although minimal, are a retreat from Lord Hamilton’s previous plans to question those applying to be a McKenzie Friend whether they are related to the party litigant. It will now be the case, according to the Lord President the document which accompanies the application for lay support requires now only to state whether or not the supporter has a financial interest in the case and if so to set out what that is.

Lord Hamilton to Petitions Committee 5 July 2010 McKenzie Friends for Scotland Page 1Lord Hamilton’s letter to Petitions Committee informed MSPs of rule changes. Lord Hamilton wrote : “The draft Act of Sederunt was considered by the Court of Session Rules Council at its meeting on 10 May. I refer to item 6 of the draft minutes of the meeting. The Council took account of the substantive points made in the Committee’s discussion at its meeting on 4 May. The draft was modified slightly so that document which accompanies the application for lay support requires now only to state whether or not the supporter has a financial interest in the case and if so to set out what that is.”

On the thorny subject of McKenzie Friends being paid for their help in Scottish courts, as they are in England & Wales – an issue now supported by case law, the Lord President informed the Parliament : “And the prohibition on remuneration was confined to remuneration from the litigant; it is not (and never was) intended to prohibit members of advice services from providing lay support on the basis that they were remunerated by a public body or a charitable organisation. Indeed, support from those sources is manifestly to be encouraged.”

The reference to case law in the English courts family division to support the right of a McKenzie Friend to charge for their services, reports that Mr Justice Munby, ruling over a case of costs arising from contentious contact and residence litigation between unmarried parents [N (A Child) [2009] EWHC 2096 (Fam)] concluded the child’s father’s McKenzie Friend “is entitled to charge, if he can find clients willing to pay his fees, at an hourly rate which can hardly be said to be extravagant when contrasted with the fees one frequently finds being charged to privately paying clients in family cases”.

Serious questions remain over the Lord President’s desire to forbid any payment to McKenzie Friends in Scotland, with some campaigners questioning whether the prospect of not even a small reward for the services of a lay assistant may well put off many capable individuals from offering to serve as McKenzie Friends to unrepresented party litigants, particularly when the lay assistant scheme is passed for use in Scotland’s Sheriff Courts later this year, as I reported earlier here : Sheriff Court Rules Council reveals McKenzie Friends on course to help party litigants in Scottish Sheriff Courts by end of summer 2010

Lord Hamilton to Petitions Committee 5 July 2010 McKenzie Friends for Scotland page 2Lord Hamilton also informed Holyrood he would keep the arrangements for McKenzie Friends ‘under review’. Lord Hamilton went onto inform MSPs there had been no difficulties reported to him so far over the McKenzie Friend issue : “The Act of Sederunt was duly made (SSI 2010/205). It came into force in relation to lay support on 15 June. At the time of writing it is not possible to offer the Committee any information about how it is working out in practice, other than to say that no difficulties have yet been communicated to me. Once the new arrangements have been in place for a reasonable period, I intend to survey my colleagues to establish the effectiveness of them. I would wish to stress that the arrangements will be kept under review and that, if there are any difficulties, they can be communicated to my Private Office and taken forward with the Rules Council as appropriate.”

Lord Hamilton concluded his letter to the Petitions Committee, informing MSPs the Sheriff Court Rules Council were drafting rules for the Sheriff Courts later in the summer : “That deals, I think, with the Court of Session. So far as the sheriff court is concerned, I understand that the Rules Council continues to have the matter under consideration and anticipates considering a draft of amendments of the sheriff court rules at its meeting on 6 August.”

Recent background to McKenzie Friends in Scotland :

Lord WoolmanCourt of Session judge Lord Woolman granted Scotland’s first civil law McKenzie Friend in late 2009. During the course of the Scottish Parliament’s consideration of the McKenzie Friend petition, one of Scotland’s longest running civil claims actions, M.Wilson v North Lanarkshire Council & Others (A1628/01), overtook events at Holyrood and introduced Scotland’s first civil law McKenzie Friend in the Court of Session, granted by Lord Woolman, making the decision to introduce McKenzie Friends to general use in the Court of Session and lower Sheriff Courts, a formality, albeit one taking the best part of a year to complete.

Lord GillLord Gill proposed McKenzie Friends in Civil Courts review. Progress to finally bring lay assistants to Scotland’s civil courts was helped considerably by McKenzie Friends being recommended by Scotland’s Lord Justice Clerk, Lord Gill who had spent considerable time on the issue of lay representation as part of the two year Civil Courts Review. Lord Gill had also recommended a ‘super McKenzie Friend’ with a right of audience, enabling a lay assistant to address the court on behalf of party litigants, a proposal now part of the Legal Services (Scotland) Bill, which I recently reported here : McKenzie Friends from today in Court of Session, Lord Gill’s ‘super’ McKenzie Friend with rights of audience proposal goes to Holyrood

I will report further on the McKenzie Friend issue when the Sheriff Court Rules Council publish more details on their draft rules and timescale for formal introduction.

You can read my earlier coverage of the campaign to bring McKenzie Friends to Scotland, here : McKenzie Friends for Scotland : The story so far

All written submissions for the McKenzie Friend petition at the Scottish Parliament can be read here : Written submissions for Petition 1247, McKenzie Friends for Scotland

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