A very Judicial success : McKenzie Friends to hit Scotland’s Sheriff Courts soon, Law Society agrees on ‘automatic right to use lay assistants’

Scotland’s Lord Justice Clerk, Lord Gill’s reform proposals helped bring McKenzie Friends to Scots Courts system. THE FINAL CHAPTER in the long running campaign to bring McKenzie Friends to all of Scotland’s courts, which began with the consideration of the issue in 2007 by Lord Gill’s Civil Courts Review, has now finally been written, as the Sheriff Court Rules Council announced this week it had finalised its consideration of rules on the use of McKenzie Friends across Scotland’s Sheriff Courts, with enactment allowing unrepresented party litigants to apply to use a lay assistant expected within a matter of weeks.

A spokesperson for the Sheriff Court Rules Council stated : “The Sheriff Court Rules Council further considered draft rules for the use of a McKenzie Friend at its meeting on 5 November. The Council agreed the substance of these and they will be submitted to the Court of Session for consideration later this month.”

The Scottish Parliament have also been briefed by the Sheriff Court Rules Council, who wrote to MSPs stating : “Current plans are for rule changes to be included within a miscellaneous instrument to be made later this month, but this of course depends on (a) when the Council’s proposed rules are finalised: and (b) the view taken of them by the Court of Session.”

However, further investigations & enquiries by Diary of Injustice have now established the original suggestion by the Sheriff Court Rules Council that McKenzie Friends be allowed to receive some form of payment for their services in the Sheriff Courts, has now been abandoned, and a similar set of rules forbidding the remuneration of McKenzie Friends, as was passed in the Lord Hamilton’s Act of Sederunt announced earlier in February of this year, which approved the use without remuneration of McKenzie Friends in the Court of Session in mid June 2010, will now also be used in the Sheriff Courts. I reported more on the remuneration issue during July, here : Lord President softens rules on Scottish McKenzie Friends, remuneration issue still out of step with England & Wales

A spokesperson for the Sheriff Court Rules Council answered enquiries on the remuneration point, saying : “The Council proposes that a similar provision in relation to the matter of expenses as to that which is already in place in the Court of Session Rules should be provided for in the sheriff court rules.”

A legal insider commented this was a rather unusual step, given there was already case law in England & Wales [N (A Child) [2009] EWHC 2096 (Fam)] to support the right or entitlement of a McKenzie Friend to charge or at least receive some form of remuneration for their services.

He said : “Personally I feel we could have done without this fuss over a McKenzie Friend being able to charge a fee or not. Forbidding it sounds almost anti competitive, and will at any rate, restrict the numbers of qualified individuals offering themselves up as McKenzie Friends. It is a counter productive attitude, and perhaps one which could be challenged later on under ECHR, with it possibly being open to interpretation of denying a party litigant the right to a fair hearing – if they cannot secure a qualified McKenzie Friend because of such a restriction.”

Law Society of Scotland now support a presumed right for party litigants to use a McKenzie Friend in Scotland’s courts. Meanwhile the Law Society of Scotland followed suit, its Civil Justice Committee stating “…there should be an automatic right to use a McKenzie Friend. However, it should be within the court’s discretion to insist on a withdrawal of a McKenzie Friend if it determines that the position is being abused.” which sets out an almost identical position to that of McKenzie Friends in England & Wales.

An official from one of Scotland’s consumer organisations who have consistently spoken in favour of McKenzie Friends commented on the Sheriff Court Rules Council announcement, welcoming the changes. He said : “I view this as a positive step in ensuring many consumers in Scotland who for various reasons do not have access to a solicitor can now enjoy a significant measure of assistance to help them as party litigants present their case in the Sheriff Courts.”

He continued : “The Civil Courts Review team and Lord Gill are to be commended for pursuing the question of McKenzie Friends in their two year investigation of civil justice in Scotland. I would also like to say the Scottish Parliament’s scrutiny of the issue also played a part in ensuring its speedy implementation.”

2007 Civil Courts Review consultation raised McKenzie Friends issue. The question of McKenzie Friends was first raised in the 2007 Civil Courts Review Consultation Paper (pdf) launched by Scotland’s Lord Justice Clerk, Lord Gill to being the Civil Courts Review. In the paper, Lord Gill stated : “The courts in England and Wales have for over 30 years allowed party litigants to be assisted in court by what have become to be known as “McKenzie friends”. They do not take on the role of a lawyer, but provide support in court such as making notes, prompting or giving advice on the conduct of the case. There have been occasions where the Court has gone further and, in particular circumstances, allowed the McKenzie friend to address the Court.148 In such cases the court has to exercise its statutory powers and grant a right of audience to the McKenzie friend. The desirability of permitting a party litigant to be represented in court by a person without a right of audience is a matter that the Review will consider.”

Consumer Focus Scotland have supported the idea of McKenzie Friends in Scottish courts for years. The Scottish Consumer Council (now renamed Consumer Focus Scotland) responded to the consultation paper in March 2008, over a year before a petition was filed at the Scottish Parliament on the issue, backing the call to introduce McKenzie Friends. The Scottish Consumer Council’s response stated : “We would welcome recognition by the Scottish courts of the need for discretion to allow some form of ‘McKenzie friend’ to accompany and possibly represent a party litigant in appropriate cases.”

Which? also backed McKenzie Friends. The Which? consumer organisation replied to the consultation paper in April 2008, also supported the introduction in Scotland of McKenzie Friends, stating : ”Some litigants cannot afford or cannot find a lawyer to represent them and may find it beneficial and useful to be represented by a non lawyer. We feel this should be permitted. We support the idea of Scottish courts allowing ‘McKenzie friends’ to accompany and perhaps represent a litigant where appropriate, provided appropriate safeguards are introduced.”

Lord Gill’s Civil Courts Review recommended the implementation of McKenzie Friends for Scotland. The results of Lord Gill’s Civil Courts Review were published in August 2009., his report finally recommended the implementation of McKenzie Friends in Scottish Courts, stating : “If the court considers that it would be helpful in any case, a person without a right of audience (a ‘McKenzie friend’) should be permitted to address the court on behalf of a party litigant. The court should have discretion to refuse to allow any particular person to act as a McKenzie friend on grounds relating to character or conduct and to withdraw a permission to at as such at any time. The rules of court should specify the role to be played by such persons and should provide that they are not entitled to remuneration.”

A little help from Australian Barrister, Ian Hanger QC supported McKenzie Friends for Scotland. Lord Gill’s recommendations on McKenzie Friends also had a timely note of support from the original McKenzie Friend himself, Ian Hanger QC, who wrote to the Scottish Parliament, supporting the introduction of McKenzie Friends into Scottish Courts. Ian Hanger QC wrote in his letter : “In Australia, most of our courts have the power to permit a non-qualified person to, in effect, represent a litigant. A McKenzie Friend does not have a right to address the court. That right is confined to quietly assisting the unrepresented litigant. The Australian experience has been that it has worked successfully. … I cannot see that the floodgates would be opened by permitting, in appropriate cases, the presence of the McKenzie Friend to help the unrepresented litigant. In some cases you will get a brilliant law student who will provide enormous assistance to the Court .. I would urge the Parliament to permit the appearance of the McKenzie Friend.”

Insiders at Holyrood and from the legal profession point to Ian Hanger’s invaluable and timely letter to the Scottish Parliament in support of McKenzie Friends as ‘having sealed the deal’ on McKenzie Friends coming to Scotland.

Lord Woolman granted Scotland’s first Civil Law McKenzie Friend request Two months after Lord Gill had recommended the introduction of McKenzie Friends to Scotland’s Courts, and nearly 40 years since they were introduced to England & Wales, the first ever civil law McKenzie Friend in Scotland’s Court of Session was granted by Lord Woolman in a long running civil damages action which named Motherwell College, North Lanarkshire Council & Edinburgh Law firm Simpson & Marwick as defenders. The case, a medical injury claim M.Wilson v North Lanarkshire Council & Others (A1628/01) was again recently in the headlines, here : FIFTEEN year wait for justice against Motherwell College marks poor state of Scotland’s ‘Victorian’ Justice System on European Civil Justice Day

McKenzie Friends made official in Court of Session by Lord Hamilton. In June of 2010, Scotland’s Lord President, Lord Hamilton implemented rules & guidance on the use of McKenzie Friends in Scotland’s Court of Session as of 15 June 2010. This speedier than expected implementation came about after intense media coverage online and in the national press, ensuring after Lord Hamilton’s Act of Sederunt announced earlier in February of this year finally took effect, anyone who cannot obtain legal representation for litigation which demands a place in Scotland’s highest court, now have the right to file a motion requesting the services of a McKenzie Friend to assist their case.

The final chapter is now written for McKenzie Friends in Scotland. This time, despite occasional judge bashing, Holyrood bashing, attempted & thankfully unpublished bashing of a senior Scottish Minister for not supporting a petition, media bashing, Law Society bashing, and even claims by some for credit for something which was already set in stone at least a year before (that pushing at an open door feeling), the legal system got it right … or perhaps ‘mostly right’, albeit having to be spurred on by individuals cases who have greatly been denied access to justice for so long in the Scottish Courts. We all, of course, have a great deal to thank Lord Gill for in his Civil Courts Review conclusions and his comments which have led to speedier than usual reforms in the Scottish justice system.

We should also not forget the help from our Australian cousins, Scottish politicians such as MSPs Margo MacDonald & David Whitton who both raised the political profile of the McKenzie Friends issue, the Scottish Government who have introduced a ‘talking McKenzie Friend with rights of audience’ via the Legal Services (Scotland) Act 2010 (pdf), the significant media coverage, both online and in the national press, the help of consumer organisation Which? and the dedication of those working for our Scots consumer champion in the form of Consumer Focus Scotland, which the Westminster based coalition Government plans to axe, in what must certainly be an act of cutting off one’s nose to spite one’s face, or perhaps, limit the powers of consumers to stand up to big business & vested interests.

I don’t know about you, but I’d call that team work, all the way from the benches of Scotland’s Court of Session on a bleak winter’s day, to the great cities of Australia, which are no doubt about to enjoy a long luxurious summer. As a journalist, its been fun, and hopefully informative & helpful to all, to write about it. This McKenzie Friend has now left the building.

 

McKenzie Friends from today in Court of Session, Lord Gill’s ‘super’ McKenzie Friend with rights of audience proposal joins Holyrood’s Legal Services Bill

McKenzie Friends made official in Court of Session by Lord Hamilton. McKenzie Friends are officially available to all Scots court users & party litigants in the Court of Session as of today, 15 June 2010, after Lord Hamilton’s Act of Sederunt announced earlier in February of this year finally took effect, allowing anyone who cannot obtain legal representation for litigation which demands a place in Scotland’s highest court, to file a motion requesting the services of a McKenzie Friend to assist their case.

McKenzie friends as we are all probably now well aware of, are lay individuals who assist party litigants in court, for example by providing moral support, helping with court documents, or giving discrete advice. The Lord President has now clarified the situation in the Court of Session through an Act of Sederunt which comes into force today. Lord Hamilton has also notified the Sheriff Court Rules Council which will consider the matter at its meeting tomorrow, 16 June 2010. This will include an acknowledgement that lay assistance to party litigants is possible; a description of what form this assistance can take; and a presumption in favour of allowing a party litigant to have such a lay assistant.

A McKenzie Friend’s friend – unswerving support from Margo MacDonald MSP helped bring McKenzie Friends to Scotland’s Courts. The success of the campaign to bring McKenzie Friends to Scotland, kicked off by Petition 1247 filed by Stewart MacKenzie at the Scottish Parliament’s Petitions Committee, and supported by several law reform campaigners & groups, consumer organisations such as Consumer Focus Scotland & Which?, included key support from MSPs such as Margo MacDonald & David Whitton, and even support from the original McKenzie Friend himself, Australian Barrister Ian Hanger QC, all backed up by developments during November 2009 which saw Scotland’s first civil law McKenzie Friend allowed in the Court of Session by Lord Woolman during M.Wilson v North Lanarkshire Council & others (A1628/01), was hailed today by Scottish Parliament insiders as a collective effort showing the system of public petitions had worked well, helping to bring in a reform which had also been 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.

Whilst I would characterise the year long campaign to bring McKenzie Friends to Scotland as being more of a struggle between the Lord President, the Scottish Parliament, the Scottish Government and supporters, there is no doubt a reform which featured heavily in Lord Gill’s Civil Courts Review has made it to existence much sooner than if things had been left to the courts system itself to allow. After all, Scotland has been without McKenzie Friends for forty years, an omission no one is yet willing to explain substantively, and apparently an issue the Petitions Committee feels it cannot seek answers to.

Application for a McKenzie Friend in the Court of Session will cost £45. There are also some questions remaining over access, costs & funding of McKenzie Friends in Scottish Courts after the Court of Session Rules Council minutes revealed some ‘devil in the detail’, most notably on fees(proposed by the Lord President to stand at £45 per motion for a McKenzie Friend), which have been sharply criticised by some as party litigants are often unrepresented and have been put in a position of being a party litigant more because they cannot afford the expensive legal services of Scotland’s legal profession rather than the constant argument from the Law Society of Scotland that their cases are not worthy of courtroom attention. Given the costs of travel to the Court of Session and other associated costs, it is hoped the £45 fee may be looked at in a sympathetic light as applications for McKenzie Friends being to reach the Court of Session.

While Scots will be stuck with the £45 fee for the time being, fees for applications of McKenzie Friends/lay assistance in the English family courts (pdf) apparently stand at £175, using the Application Form C2 (pdf). However, party litigants have been able to circumvent the fees by writing to the judge enclosing the CV of their intended McKenzie Friend, according to individuals well experienced in the McKenzie Friend process in the English courts.

The Scottish Government have lodged a promised amendment to the Legal Services Bill proposing McKenzie Friends with a right to address the court. While questions remaining over the use of McKenzie Friends (Lay Assistants) in Scotland’s Sheriff Courts will be answered at tomorrow’s Sheriff Court Rules Council meeting, chaired by Lord Hamilton himself, another benefit has emerged from the successful introduction of McKenzie Friends to Scotland’s Court of Session .. in the form of a recent amendment lodged by the Scottish Government to the Legal Services Bill, which proposes to allow Lord Gill’s Civil Courts Review recommendation of a ‘super’ McKenzie Friend with a right of audience, who will be able to address the court as well as assist their party litigant with all the other tasks associated with a McKenzie Friend up to now.

A Scottish Government spokeswoman said: “We have lodged amendments to the Legal Services (Scotland) Bill to allow provision for lay representatives, who do not have a right of audience, to address the court on behalf of a party litigant, in certain circumstances.”

“In the report of the Scottish Civil Courts Review (“SCCR”), it was noted that “there may be exceptional circumstances in which it would be appropriate to permit a McKenzie friend to assist a party litigant and, with the court’s permission, to address the court”. It went on to recommend that “a person without a right of audience should be entitled to address the court on behalf of a party litigant, but only in circumstances where the court considers that such representation would help it”. We intend to implement this recommendation, so this will be the first recommendation of the SCCR, requiring primary legislation, to be implemented.”

So, compliments to the Scottish Government on this one … the first recommendation of Lord Gill’s Civil Courts Review to hit the streets in a usable form for court users in Scotland’s civil justice system. Lets have more please, including the reforms suggested by Lord Gill on Class Actions and also digital recordings in court which many would welcome being implemented in the present rather than far in the future.

I reported on the issue of transcripts of proceedings in Scotland’s courts in an earlier article here : Scottish court users advised to ‘take along a note taker’ as omissions in civil court transcripts jeopardise consumers access to justice and clearly Lord Gill feels the matter of digital recording facilities in Scotland’s courts would assist the interests of justice, confirmed to me by many litigants involved in civil actions where the events which took place in court are often omitted from interlocutors and later references made by opposing legal teams.

Lord Gill recommends digital recordings of all civil court evidence. The extent of problems with court transcripts and recordings, was referred to in Chapter 6 of Lord Gill’s Civil Courts Review, where the Lord Justice Clerk stated : “Currently where evidence is recorded in civil cases this is done manually by a shorthand writer. In our view it would be more efficient to record digitally all evidence in civil cases, as happens in criminal cases. The cost of this should be borne by the SCS. The availability of digital recording facilities in all courtrooms would contribute to more flexible usage of accommodation. We understand, however, that to equip a court fully for digital recording could cost up to £15,000. That may be prohibitive in smaller courts. Mobile facilities could be made available in those courts when required. If parties required a transcript of the evidence a charge would be made for this service. In many instances a recording of the evidence would be all that would be required.”

Clearly problems do exist with transcripts of courtroom activity, which as Lord Gill concludes himself, would easily be curtailed by the digital recording of all evidence in civil cases. You can download Lord Gill’s Civil Courts Review at the following links : Civil Courts Review

Volume 1 Chapter 1 – 9 (Covers McKenzie Friends, procedures, use of information technology in courts, advice etc, 2.99Mb)

Volume 2 Chapter 10 – 15 (Covers mainly the issue of Class (multi party) actions etc, 2.16Mb)

Synopsis (215Kb)

How about it Mr Ewing ? It wouldn’t take much to produce an additional amendment to the Legal Services Bill putting forward Lord Gill’s recommendation on recordings of all civil court cases. Given the terms of the Civil Courts Review and Lord Gill’s proposals, I’m sure the Scottish Parliament would support such a move, which would be welcomed by many …

While there is still some work to do on McKenzie Friends in Scotland, to ensure Scots have the same entitlements as our English cousins, I would like to thank all involved who have cooperated in my series of reports on McKenzie Friends over the past year, thanks going especially to the original McKenzie Friend, QC Ian Hanger, MSPs such as Margo MaDonald and David Whitton, and the many officials from the Scottish Court Service, Scottish Government Scottish Parliament and others who have spoken out when it counted, or given statements to complete my coverage.

Also, and not least, my thanks go to all those unrepresented party litigants who have told me of their stories, all of whom have endured a considerable denial of their access to justice over the years in Scotland, simply because their cases were either too controversial or involved parts of the establishment which the legal profession were too close to. I hope through my reporting on the petition and the campaign to bring McKenzie Friends to Scotland, I have given you all a voice and a chance of access to justice denied for too long …

The Petitions Committee of the Scottish Parliament will again discuss Petition 1247 later in the summer.

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

 

Scots Law ‘shake up’ as Lord Gill’s Civil Courts Review supports McKenzie Friends, Class Actions & wider access to justice for all

Scotland’s Lord Justice Clerk Lord Gill publishes his two year long Civil Courts Review. FORTY YEARS after McKenzie Friends were first introduced in England & Wales, the long awaited Civil Courts Review, undertaken by the Lord Justice Clerk, Lord Gill, has finally ended the decades long discrimination against Scottish court users, by recommending the introduction of McKenzie Friends to Scotland as well as a whole range of much needed improvements for Scots access to justice, including the introduction of simplified court procedures, more advice on legal rights, increased use of mediation, and finally and end to the infamous exclusion of Class Action litigation in Scotland’s antiquated civil courts system.

Lord Gill’s Civil Courts Review finally recommends the implementation of McKenzie Friends for Scotland. After a long hard battle fought by petitioners to the Scottish Parliament, law reformers,and consumer organisations throughout the UK who joined in campaigning for the introduction of McKenzie Friends in Scotland, Lord Gill’s report finally recommends their implementation, stating : “If the court considers that it would be helpful in any case, a person without a right of audience (a ‘McKenzie friend’) should be permitted to address the court on behalf of a party litigant. The court should have discretion to refuse to allow any particular person to act as a McKenzie friend on grounds relating to character or conduct and to withdraw a permission to at as such at any time. The rules of court should specify the role to be played by such persons and should provide that they are not entitled to remuneration.”

Australian Barrister, Ian Hanger QC supported McKenzie Friends for Scotland. Lord Gill’s recommendations on McKenzie Friends appear to be greatly influenced by a Holyrood public Petition Petition 1247, raised by Mr Stewart MacKenzie, which saw fantastic support from consumer organisations such as Which? and Consumer Focus Scotland, who both campaigned to bring McKenzie Friends to Scotland. However, insiders at Holyrood and from the legal profession point to Ian Hanger’s invaluable and timely letter to the Scottish Parliament’s petitions committee as ‘having sealed the deal’ on McKenzie Friends coming to Scotland. Ian Hanger QC wrote in his letter : “In Australia, most of our courts have the power to permit a non-qualified person to, in effect, represent a litigant. A McKenzie Friend does not have a right to address the court. That right is confined to quietly assisting the unrepresented litigant. The Australian experience has been that it has worked successfully. … I cannot see that the floodgates would be opened by permitting, in appropriate cases, the presence of the McKenzie Friend to help the unrepresented litigant. In some cases you will get a brilliant law student who will provide enormous assistance to the Court .. I would urge the Parliament to permit the appearance of the McKenzie Friend.”

McKenzie Friend petitioner, Mr Stewart MacKenzie, when asked for reaction on Lord Gill’s recommendations on McKenzie Friends, said : “I am delighted the people of Scotland are to be finally made equal with the people of England & Wales, after forty long years of inequality in the Scottish courts system.”

I can also exclusively reveal that Scotland’s Court of Session is liable to see a quick test of Lord Gill’s McKenzie Friend recommendations later this week. On the basis of Lord Gill’s positive approach to the introduction of McKenzie Friends in Scotland, this Friday will see a test of the judiciary’s resolve over the McKenzie Friend issue, where a request is to be made to judges to allow a party litigant the use of a McKenzie Friend in a long running civil case.

A legal insider said today : “On the basis of Lord Gill’s unequivocal support for the issue of McKenzie Friends in Scotland, the court should now move on the Lord Justice Clerk’s recommendations and allow the use of McKenzie Friends.”

He continued : “I welcome the news there is to be a test case this week for the use of a McKenzie Friend at the Court of Session. This request, coming on the back of the Civil Courts Review and much support from individuals & consumer organisations for assistance in the court will be an interesting challenge of the court’s resolve on the McKenzie Friend issue. I wish the party litigant all the best in his request.”

A consumer affairs insider however claimed that while Lord Gill’s recommendations on McKenzie Friends were very welcome, there would be greater benefit to all court users if substantive rules and obligations were placed upon the courts by legislative means, to ensure the public had full & proper rights as per the application and use of McKenzie Friends in Scotland’s courts.

She said : “There is no getting away from the fact that Scotland has missed out on McKenzie Friends for some forty years. I think that fact speaks for itself in that the courts and legal profession have resisted their use, on grounds of doing lawyers out of profits rather than worrying about the quality or availability of legal representation to those who seek it.”

“I think consumers rights, and indeed the law itself would be greatly enhanced if a legislative approach was taken to the McKenzie Friends question, going one step further than the English courts, and making it an unequivocal right for a litigant to be able to request and receive the assistance of a McKenzie Friend, if so desired.”

Consumer Focus Scotland welcomed Civil Court Review recommendations. Martyn Evans, Director of Consumer Focus Scotland, commented “This review sets out a bold range of challenging but pragmatic recommendations. It gives a clear and prominent voice to the interests of citizens as users of our civil justice system. The prize set out by Lord Gill is a civil justice system fit for the 21st century. There is bound to be a great deal of debate over his proposals. We hope the interests of individual users of the civil justice system are given due consideration and weight in that debate alongside the interests of judges, lawyers and business.”

Examples of recommendations from Lord Gill’s Civil Courts Review that will increase access to justice include:

* introducing a new more user friendly simplified procedure for cases involving lower monetary value and housing matters, designed with unrepresented court users in mind.
* Promoting increased public legal education about legal rights and responsibilities and where to go for help.
* The extension of in-court advice services throughout Scotland.
* The introduction of ‘McKenzie friends’ to assist unrepresented parties in court.
* Encouraging parties to consider the use of mediation and other forms of alternative dispute resolution.
* The introduction of a procedure for multi-party (class) actions in Scotland.

You can download the report in pdf format, from the Scottish Courts Website at the following links :

Civil Courts Review

The Report of the Scottish Civil Courts Review was launched today Wednesday, 30 September 2009 and is available to download below:

• Volume 1 Chapter 1 – 9 (Covers McKenzie Friends, procedures, advice etc, 2.99Mb)
• Volume 2 Chapter 10 – 15 (Covers mainly the issue of Class (multi party) actions etc, 2.16Mb)
• Synopsis (215Kb)

Justice Secretary Kenny MacAskill has proved resistant to reforming laws such as rights of audience & representation, which benefit the legal profession itself. Certainly, I am very happy to see the long overdue proposals to reform civil law in Scotland, but now the issue of bringing McKenzie Friends to Scotland rests with the Justice Secretary, Kenny MacAskill and the Scottish Government, who have so far, proved thoroughly resistive to bringing reforms into Scots Law to make us equal with our English cousins.

Law Society of Scotland & Faculty of Advocates remain resistant to McKenzie Friends. There is also the question of opposition from the Law Society of Scotland and the Faculty of Advocates, who both opposed the McKenzie Friends petition at the Scottish Parliament, mostly because allowing McKenzie Friends into Scottish courts would introduce individuals who will most probably be outwith the influence and control of the legal profession. I reported on the legal profession’s opposition to the introduction of McKenzie Friends in Scotland, in two earlier articles, here : ‘Control Freaks’ at Law Society say “No” to McKenzie Friends as Holyrood submission signals resistance to Lord Gill’s civil justice review & here : Legal profession ‘afraid of losing profits & control of access to justice’ as Faculty of Advocates protest against McKenzie Friends for Scotland

Such a welcome move of bringing in fresh blood to Scotland’s courts, who are motivated to assist litigants in a professional & capable manner, and who don’t have a Law Society leash attached round their necks, will be of considerable help & benefit to all users of Scotland’s courts.

 

McKenzie Friends for Scotland gain support from ‘original McKenzie Friend’ while Scottish Government hint at delays to civil justice reforms

Scottish Parliament receives submission from ‘the original McKenzie Friend’ promoting McKenzie Friends for Scotland. IAN HANGER QC, the Australian barrister who participated in the 1970 McKenzie v McKenzie court case in London which led to the existence of the now widely used McKenzie Friend facility by thousands of unrepresented litigants in courts all around the world, has given a submission to the Scottish Parliament’s Petitions Committee in support of Petition 1247 asking that Holyrood permit the use of McKenzie Friends in Scotland’s courts.

Ian Hanger QC urges Holyrood to permit the appearance of a McKenzie Friend. In his submission to the Parliament’s Petitions Committee, Ian Hanger QC writes of the historical nature of the court case which began the existence of the ‘McKenzie Friend : “I did not know when a humble clerk working for Jeffrey Gordon in 1969 and 1970, that when he asked me to look after Mr McKenzie I would be catapulted into history. For me it was just another day at the office. Quite frankly, I did not think that Mr McKenzie had a lot going for him but he was entitled to have his case put in the best possible fashion. I tried to help him do that. I am quite sure that had I been able to remain in court and quietly assist him, the case would not have gone on for half the time that it, in fact, did. I am sure that I could have curtailed the hearing to a few days.”

The submission goes on to detail how McKenzie Friends operate in the Australian courts : “As you know, a lot of common law has developed around the doctrine of McKenzie Friend and certainly some of it is confused. In Australia, most of our courts have the power to permit a non-qualified person to, in effect, represent a litigant. Such a provision is specifically contained in the Acts or Rules of Court. But such a person is not a McKenzie Friend.”

“A McKenzie Friend does not have a right to address the court. That right is confined to quietly assisting the unrepresented litigant. The Australian experience has been that it has worked successfully. I don’t know of the Scottish experience, but certainly in Australia the courts are now greatly troubled by unrepresented litigants and, as the Chief Judge of our District Court has informed me – any help is appreciated.”

“Of course, some McKenzie Friends step out of line. The Australian courts have had no hesitation in controlling such people. Obviously the McKenzie Friend should not be entitled to charge any fee for services. To do so, in Australia, would be breaching our Legal Services Acts. I cannot see that the floodgates would be opened by permitting, in appropriate cases, the presence of the McKenzie Friend to help the unrepresented litigant. In some cases you will get a brilliant law student who will provide enormous assistance to the Court.”

Ian Hanger concludes his letter to the Scottish Parliament, stating : “I would urge the Parliament to permit the appearance of the McKenzie Friend.”

Clearly the support of Ian Hanger QC, being the original McKenzie Friend is of considerable value to the effort to bring McKenzie Friends to Scotland, some FORTY YEARS after their first use in England & Wales. Thank you Ian !

A spokesman for a Scottish consumer organisation said last night : “I am delighted to read of the tremendous support given by Ian Hanger to the McKenzie Friend petition at the Scottish Parliament.”

He went on : “As you know our organisation together with several other consumer groups have been supporting the petition at Holyrood, and I can only say that having the support of the original McKenzie Friend is a great bonus, which proves our efforts are justified in ensuring that consumers in Scotland have the same access to justice entitlements as those in England & Wales and all the other jurisdictions were McKenzie Friends have operated successfully for many years.”

Several officials from other consumer groups joined in praise of the contribution from Ian Hanger, one senior official calling Mr Hanger’s submission “so invaluable to the McKenzie Friend debate in Scotland that it must lead to change in the Scottish courts so that the growing number of unrepresented litigants can avail themselves of a facility which has helped many people over the years in the sometimes intimidating court environment.”

However, while the petition has received considerable support from consumer organisations, law reformers, campaigners, politicians, and the anticipated support of Scotland’s Lord Justice Clerk Lord Gill, who is rumoured to be recommending the implementation of the McKenzie Friend facility in his forthcoming civil courts review, there are still apparently some obstacles to overcome.

As I reported on Wednesday of this week, the Law Society of Scotland have predictably opposed the moves to allow McKenzie Friends in Scotland’s courts, claiming it should be for judges to decide on a case by case basis whether unrepresented litigants can have someone quietly assist them represent their own case.

The claims by the Law Society of Scotland against the implementation of McKenzie Friends, were however, quickly dismissed as “rubbish” and “pure nonsense” by several senior legal figures who are of the clear opinion the Law Society simply wants to keep out McKenzie Friends from Scotland’s courts on worries of financial worries, fearing law firms & solicitors will lose business due to clients deciding to take on a McKenzie Friend instead of paying out tens of thousands of pounds on costly and poor quality legal representation.

A retired solicitor commented last night : “The Law Society can protest all they like about not introducing McKenzie Friends to Scotland, but we all know their arguments hold no water. The fact is the Society feels itself being threatened by the introduction people to the court whom it does not control nor who will bring in money to the legal profession.”

He continued : “McKenzie Friends should be allowed in the court, and I think we are all in no doubt there will have to be some kind of legislation to guarantee that litigants can choose to have a McKenzie Friend, rather than allow this ridiculous idea of judges being given the responsibility of considering case by case requests from litigants for the use of a McKenzie Friend, which in my view could lead to repeated miscarriages of justice.”

Justice Secretary MacAskill finally submitted his ambiguous three page reply to the Scottish Parliament. Scotland’s Justice Secretary Kenny MacAskill has now submitted his response to the McKenzie Friend petition, stating : “… some important elements of the McKenzie friend facility are already available in the Scottish Courts, but the Scottish Government currently has no plans to further replicate the facility before consideration of the report and recommendations of the Civil Courts Review under the Lord Justice Clerk and (ii) the consultation on the eighth programme of law reform”.

Justice Secretary MacAskill’s submission gave limited examples of the rights of unrepresented litigants in Scotland’s courts. Mr MacAskill’s submission described the use of McKenzie Friends in England & Wales, then went on to detail how the issue had [not] been handled in Scotland : “In Scotland differing views have been expressed by Outer House judges as to the competency of permitting a person assisting a party litigant to address the Court on the party litigant’s behalf. Many party litigants are assisted in conducting their litigation before the Court of Session by friends and acquaintances, who sit behind them in court.”

“In Kinneil v Kinneil the Lord Ordinary, in granting an application for a wife to represent her husband who was otherwise unrepresented at the hearing, found that the Court of Session has a discretion to allow a lay person to speak for a party litigant. He emphasised, however, that this discretion should only be exercised in favour of allowing such representation in exceptional cases. Each case will depend on its own facts. In another case the Lord Ordinary, in the absence of any authority supporting that approach, found it to be incompetent, although he did acknowledge that such an arrangement might in certain circumstances prove to be of practical assistance.”

Mr MacAskill ended his submission by stating : “The Scottish Government awaits the Review’s full consideration of responses received to these and other questions, and will similarly formulate preferred reforms to Scottish civil justice systems only in a coherent whole. In the interim, in advance of receiving the Review’s report and recommendations, the Scottish Government has no plans to introduce prematurely to the Scottish courts any further or additional elements of the McKenzie friend facility.”

On an analysis of the Justice Secretary’s submission to the Petitions Committee on the McKenzie Friend issue, there is an overwhelming sense of the usual ‘delay & do nothing’ approach from the Scottish Government, which seems to typify this administration’s lack of coherent & consumer friendly policies on justice issues in Scotland.

A legal insider last night branded the Scottish Government’s submission “a no brainer” saying “If anyone is in any doubt why Scots have so little rights in court and why reforms to the justice system are so slow, they just need to read through the three pages reply the Justice Department sent into Holyrood about McKenzie Friends.”

He continued : “A good good comparison would be where the Scottish Law Commission have been recommending much needed civil law reforms for years. However most of the SLC’s recommendations have been ignored by successive administrations including the current Scottish Executive. I fear from the tone of the Executive’s response to Parliament on the McKenzie Friend petition, we are going go encounter more unnecessary delays to civil law reform in Scotland.”

While the Scottish Government continues to dither over the impending publication of Lord Gill’s civil courts review, the Scottish Court Service confirmed yesterday they would be replying to the Petitions Committee on the issue of McKenzie friends although a spokesman for the SCS when pressed for reaction on the Law Society of Scotland’s resistance on the issue, said : “We have no comment on the position being taken by the Law Society of Scotland.”

Clearly, with the groundswell of support from consumer organisations, court users, campaign groups, and even the occasional judge, and of course, the original McKenzie Friend himself, the Scottish Parliament must act and bring about clear decisive legislation to give Scots the entitlement the rest of the UK has had for forty years previous, to have a McKenzie Friend assist them in court, if so required.

You can read my earlier articles on the campaign to bring McKenzie Friends to Scotland HERE

Please support the ending of 40 years of discrimination for Scots access to justice, and help bring McKenzie Friends to Scotland’s courts.

 

Battle to bring McKenzie Friends to Scotland continues as Holyrood investigates ‘access to justice’ proposals

Petitions Committee told McKenzie Friends proposals must be supported. Earlier this week the Scottish Parliament’s Petitions Committee was told that ending a 39 year peculiarly Scottish ban on assisted public access to justice in the Scottish Courts by allowing the facility of McKenzie Friends, would greatly enhance the legal rights & success of many members of the public who find themselves facing legal action or require the use of the Justice system but for whatever circumstances are applicable to their predicament, cannot afford or obtain legal representation to further their access to the courts.

Petition PE1247 – Bringing McKenzie Friends to Scotland, with support from Margo MacDonald MSP.

Margo MacDonald stepped in to support McKenzie Friends Petition. Petition PE1247 : McKenzie Friends for Scotland, was admirably supported by Scotland’s independent MSP, Margo MacDonald, who told the Committee that in civil courts, such as small debts & other cases, people can find it impossible to obtain legal representation, finding they end up in court having to represent themselves.

Speaking on the merits of McKenzie friends, Margo MacDonald went on to tell the Committee that in England & Wales, the system of McKenzie Friends had operated successfully for 39 years where individuals who cannot access legal services through a variety of reasons, can obtain the services of a McKenzie Friend, who can assist them during their court appearances where difficulties with legal procedure and other matters can lead an individual to be put at a considerable disadvantage when unrepresented by legal counsel.

Robin Harper MSP supports McKenzie Friends as common sense idea. Robin Harper MSP, of the Scottish Green Party, was first to support the McKenzie Friends petition, calling the proposal “such an obviously good idea & common sense idea that we must continue it and we should ask the Scottish Government directly whether it will introduce a McKenzie Friend facility in Scottish Courts and if not, why not, and will this matter be part of the 8th program of law reform to be held by the Scottish Law Commission”.

Nigel Don MSP is Kenny MacAskill’s Parliamentary Liason Officer. Nigel Don MSP entered the debate by informing the Petitions Committee that the introduction of the McKenzie Friend facility south of the border, “was not brought in by the British Government, rather it was simply allowed” after it went to the Court of Appeal, this in reference to the original ‘McKenzie Friend’ case which started the whole concept, where an Australian, Ian Hanger QC, at the time, a Barrister, became involved in a case in the London courts, but whose qualifications in law in Australia did not allow him to practise as a barrister in London.

Ian Hanger was sent the brief by the firm of solicitors, Geoffrey Gordon & Co for McKenzie one day prior to the hearing. McKenzie was unable to afford legal assistance, didn’t qualify for legal aid, and had not maintained consistent contact with Gordon. Hanger sat with his client to provide what quiet assistance he could from the bar table to a man representing himself. The trial judge asked Mr Hanger to desist from doing what he was doing and this became the basis of the appeal by Gordon against the judgment against McKenzie.

Mr Don went on in the debate to say he felt it was open to the court simply to allow McKenzie Friends in Scotland, and that a ‘nod from the Lord President’ following Lord Gill’s soon to be released review of the Civil Courts system might be the way to go rather than the Parliament going through the legislation process to allow MFs to Scotland.

However, Margo MacDonald responded to Nigel Don’s remarks by making clear that something more substantial needs to be done on the issue in Scotland simply because of the 17 year time lags in Scotland in implementing the likes of Sections 25-29, and with the incredible 39 year gap between Scotland & the rest of the UK on the issue of McKenzie Friends it is time for action.

Lord Hamilton could give nod & wink to initiate McKenzie Friends but most feel political legislation is required. Certainly from my own experience in matters of law reform, I feel there must be a legislative process began on the issue of the introduction of McKenzie Friends in Scotland, given there has been such resistance to any access to justice reforms by the Scottish legal establishment, some examples of which are the 17 year restriction on small claims limits in the Scottish Courts, to some £750, where the rest of the UK had limits of £5,000 and of course, the 17 year lack of implementation of Sections 25-29 of the Law Reform (Misc Provisions) (Scotland) Act 1990, where Scotland’s ‘access to justice’ legislation was kept off the books by an arrogant campaign from the legal establishment, bent on maintaining market monopoly over the public’s access to legal services in Scotland.

Given the decades of delay in legal reforms in Scotland, can we trust the issue of McKenzie Friends to a nod & a wink from the Lord President, no matter how well intentioned it may be ? I feel not.

McKenzie Friends must be looked into by the Parliament, with at least an inquiry taking place, and ultimately questions being asked and answered as to why McKenzie Friends have been excluded from the Scottish Courts system for 39 years.

In an update to the McKenzie Friend proposal, Margo MacDonald asked a question of the Scottish Justice Secretary, Kenny MacAskill during yesterday’s question time : Margo MacDonald: To ask the Scottish Executive whether it will introduce the practice of allowing a McKenzie’s friend into law courts. (S3O-6781)

Margo MacDonald’s question to Kenny MacAskill on McKenzie Friends for Scotland brought a dithering response from the Justice Secretary, who seemed to be playing for time ahead of Lord Gill’s Civil Justice review.

There is little doubt after watching the following extract of proceedings, that Mr MacAskill is not minded to reform access to justice by any measure of the term.

In response to Margo MacDonald, Justice Secretary MacAskill struggles with delay in mind ahead of Lord Gill’s Civil Justice review.

Dithering Kenny MacAskill needs more than a push to bring in McKenzie Friends.After having watched Mr MacAskill’s response to Margo MacDonald’s question, I am convinced more than ever that Parliament must look into the issue of McKenzie Friends, hold an investigation and enact legislation which will ensure that McKenzie Friends be allowed in Scotland’s courts, because without a doubt, if it is left to the legal establishment, McKenzie Friends will never come to Scotland, just as access to justice reforms will never come to Scotland unless someone outside the legal fraternity talks about it, raises the issue publicly and gets Parliament to do something – just as we all found with the Legal Profession & Legal Aid (Scotland) Act 2007.

Ian Hanger QC, speaking on the issue to the Scotsman newspapers said regarding the Scottish Parliament’s hearing of the McKenzie Friend Petition that he “would love to address them on the virtues of the McKenzie Friend.”

On asking Ian Hanger QC as to the merits of McKenzie friends, he said : “In our Federal Court the Act dealing with the judiciary under the Constitution is the Judiciary Act. S 55 prohibits representation other than by barristers and solicitors.The Federal Court therefore regard the McKenzie Friend as a useful adjunct to the court process.

Mr Hanger went on : “Once again, I spoke today to the most senior Federal Court judge in our State and he said that overall McKenzie Friends have been very useful. He said that there are cases where the litigant cannot afford a barrister or solicitor and the judge does not think that it is appropriate to ask the profession to act in the particular case on a pro bono basis (as it can do). Of course there will be McKenzie Friends who step out of line, but the judge has the power to do what the judge did to me – prevent the person sitting at the bar table with the litigant.”

On that note, I would think the support and testimony of the original McKenzie Friend, Ian Hanger QC, must be extremely beneficial to the McKenzie Friend petition itself and the rights of all Scots to further their entitlements of access to justice & legal services. I have therefore asked the Scottish Parliament Petitions Committee to ask Mr Hanger to speak on the merits of McKenzie Friends, as a matter of importance to the debate.