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Scottish Courts overstepped powers on requirements for ‘speaking’ lay assistants say msps, Justice Committee asked to investigate

Parliament_House,_EdinburghBlame Game : Did Scottish Government blunder over wording of ‘talking’ lay assistants laws, or did courts become too protective of lawyers vested interests? ACCUSATIONS of court interference & counter claims of blunders by the Scottish Government over the wording of legislationpassed by Holyrood in 2010 which conferred the right of lay assistants (otherwise known as McKenzie Friends) to address the court on behalf of party litigants have prompted a series of exchanges between msps, various court rule making bodies & the Lord President over claims the reforms intended to allow lay assistants to address courts are unworkable in their current state.

The widely praised ‘talking’ McKenzie Friend reform, was put forward in 2010 by the then Communities Safety Minister Fergus Ewing & reported by Diary of Injustice Scotland to get ‘talking’ McKenzie Friends as consumer pressure on court access & rights of audience prompts new proposals for Legal Services Bill, with the Legal Services (Scotland) Act 2010 as it was later passed at Holyrood, giving the Court of Session powers in Sections 126 & 127 of the Act to make rules permitting a lay person to make oral submissions to the court on behalf of a party litigant.

A short consultation was then launched for views on how lay assistants with the ability to address the court, reported by Diary of Injustice HERE and the provisions for ‘talking’ lay representatives came into force on 1 September 2011.

The actual rules giving lay representatives the right to speak in the Court of Session only came into force earlier this month, after lengthy discussions between the various court bodies over ensuring McKenzie Friends could not charge for their services, a move which seems to have more to do with blocking any competition between McKenzie Friends & lawyers for business and thus sheltering lawyer’s profits, than ‘protecting’ the rights of party litigant.

However, somewhere in the mess of discussions between the courts which focussed too heavily on protecting their colleagues in the legal profession from losing out materially & financially to McKenzie Friends,  it now transpires the courts have added some conditions of their own, over and above those contained in primary legislation.  effectively blocking the rights of lay assistants to address the court.

A meeting of the Holyrood Subordinate Legislation Committee held on 26 June has now taken issue with the courts own version of the rules,  which requires “the prospective lay representative to make five different declarations relating to financial interests, confidentiality, convictions and whether or not the prospective lay representative has been declared a vexatious litigant. It is then within the discretion of the Court to decide whether the lay representative may appear. It may permit that appearance only if it is of the opinion that it would assist the Court.”

The Committee wrote to the then Lord President, Lord Hamilton, asking for further details which generated a response that “the requirement on a prospective lay representative to declare previous convictions was intended to require the disclosure of all convictions, including those which are spent for the purposes of the Rehabilitation of Offenders Act 1974.”, a condition which appears the courts have inserted themselves far & above what was allowed or envisaged via the Legal Services Act (Scotland) 2010.

The Committee, not being satisfied with responses received from the Lord President, has remitted the matter back to the Scottish Parliament’s Justice Committee for further consideration, after it’s Convener, Nigel Don made it plain he felt the courts had overstepped the mark in enforcing stricter than necessary requirements for McKenzie Friends to address Scottish courts.

However a new problem for lay assistants being able to address the court has arisen, after a lay member of the Sheriff Court Rules Council apparently spoke out to the media, accusing the Scottish Government of making a mess of the wording of the Act, not the first time such accusations have been made about poorly thought out & weak or vague worded legislation concerning so-called ‘reforms’ in the justice system.

Asked for a comment on accusations made against the Scottish Government, a spokesperson for the Sheriff Court Rules Council declined to comment and the Scottish Government have not responded to queries over the matter.

Legal insiders have since speculated the wording of the Legal Services Act (Scotland) 2010 may have been purposely framed so vaguely as to allow members of the judiciary to refuse to allow lay representatives to be able to address the court on behalf of party litigants.

An insider said : “Given the recommendations contained in the civil courts review and the campaign at Holyrood to bring McKenzie Friends to Scotland’s courts, it is at the very least, suspicious that the Scottish Government’s legal directorate failed to get the wording right on a key reform which the legal profession did not support.”

He went onto say : “With the worries of some in the legal profession that litigants may turn to using lay assistants rather than expensive legal teams who may end up generating large legal bills with little to show for it, one could perhaps speculate the badly worded sections are no accident, and were indeed designed to impede lay assistants, or McKenzie Friends from addressing the court”

Speaking to Diary of Injustice this afternoon, a solicitor based in England said he was appalled over the wrangle in Scotland over lay assistants. He said : “Only Scotland could manage to screw up McKenzie Friends with rights of audience features no one really wants. Was it done on purpose to discredit their use as time went on ? I think this could be a possibility.”

Diary of Injustice was involved in the campaign to bring McKenzie Friends to Scotland, more of which can be read here :Bringing McKenzie Friends to Scotland’s Courts

The discussion of the Holyrood Subordinate Legislation Committee follows :Holyrood Subordinate Legislation Committee 26 June meeting

Act of Sederunt (Rules of the Court of Session Amendment No. 3) (Miscellaneous) 2012 (SSI 2012/189) (Justice Committee)

45. This instrument amends the Rules of the Court of Session by inserting a new Chapter 12B which makes provision for lay representation before the court. It also revokes the Parts of Chapter 41 which relate to applications for permission to appeal against decisions of the Upper Tribunal.

46. The instrument is not subject to any parliamentary procedure and comes into force on 9 July 2012.

47. As part of its scrutiny of the instrument the Committee asked for clarification of various points from the Lord President’s Private Office (“the LPPO”). The correspondence is reproduced in Appendix 5.

48. The Court of Session (“the Court”) has power to make rules regulating the procedure and practice to be followed in that Court, in terms of section 5 of the Court of Session Act 1988 (“the 1988 Act”). These Rules are made under that power and they modify the Act of Sederunt (Rules of the Court of Session 1994) 1994 (“the Rules of the Court of Session”).

49. This instrument makes two separate amendments to the Rules of the Court of Session: paragraph 2 inserts the new Chapter 12B on lay representation, and paragraph 3 revokes certain of the Parts of Chapter 41 which the Court declared to be ultra vires in the case of KP and MRK v Secretary of State for the Home Department. This report is concerned with new Chapter 12B only.

50. Section 126 of the Legal Services (Scotland) Act 2010 amended section 5 of the 1988 Act to insert section 5(ef) which confers power on the Court to make rules “to permit a lay representative, when appearing at a hearing in any category of cause along with a party to the cause, to make oral submissions to the Court on the party’s behalf”.

51. Chapter 12B prescribes that the party who wishes to have a lay representative make oral submissions must enrol a motion accompanied by Form 12B.2. This form must be completed by the party and by the prospective lay representative. It requires the prospective lay representative to make five different declarations relating to financial interests, confidentiality, convictions and whether or not the prospective lay representative has been declared a vexatious litigant. It is then within the discretion of the Court to decide whether the lay representative may appear. It may permit that appearance only if it is of the opinion that it would assist the Court. It appears that the Court, in exercising that discretion, will take into account the declarations made on Form 12B.2.

52. In its response of 21 June 2012, the LPPO confirmed that the requirement on a prospective lay representative to declare previous convictions on Form 12B.2 was intended to require the disclosure of all convictions, including those which are spent for the purposes of the Rehabilitation of Offenders Act 1974 (“the 1974 Act”).

53. The Committee observes that section 4 of the 1974 Act relieves persons whose convictions are spent from the ongoing consequences of having to declare a conviction. It notes in particular that section 4(1)(b) of the 1974 Act provides that such a person must not, in any proceedings before a judicial authority, be asked or required to answer any question relating to his or her past “which cannot be answered without acknowledging or referring to a spent conviction or spent convictions”. It further notes that section 4 of the 1974 Act is subject to the limitations on rehabilitation set out in section 7 of that Act, and to the exclusions set out in the Rehabilitation of Offenders Act 1974 (Exclusions and Exceptions) (Scotland) Order 2003, which is made by the Scottish Ministers in exercise of the powers conferred by section 7(4) of the 1974 Act.

54. It accordingly appears to the Committee that Form 12B.2, in so far as it requires persons to declare convictions which are otherwise spent, purports to disapply section 4(1) of the 1974 Act. The LPPO was asked to explain the basis on which such provision might lawfully be made. The LPPO takes the view that the rule-making powers of the Court in section 5(a), (b) and (ef) of the 1988 Act, when read in conjunction with section 7(3) of the 1974 Act, confer power upon the Court to make provision of this nature.

55. The Committee observes that the Parliament expressly conferred the power to make rules permitting lay representation before the Court when it enacted section 126 of the Legal Services (Scotland) Act 2010, inserting section 5(ef) of the 1988 Act. The Court, in its judicial capacity, has held that section 5(a) of the 1988 Act cannot be relied on to supplement any of the specific powers otherwise conferred in that section. As the Lord President (Hope) commented in Taylor v Marshalls Food Group, “[h]ad Parliament taken the view that para. (a) was as general as counsel suggested, then it would not have found it necessary to insert the new paragraph […] to allow the court to make acts of sederunt in relation to expenses.” In light of this judgment of the Court the Committee takes the view that neither paragraph (a) nor (b) of section 5 enables the Court to make provision which, properly construed, is ancillary to the power to make rules permitting lay representation conferred by paragraph (ef).

56. Furthermore, in the Committee’s view there is nothing in paragraph (ef) which permits the Court to make rules which override primary legislation, in particular the prohibition on requirements to disclose spent convictions established by section 4(1) of the 1974 Act. It appears to the Committee that the Court is seeking, in its legislative capacity, to specifically override provision enacted by the UK Parliament in a manner which is not subject to the Parliament’s supervision. It observes that such a power exists but that it is a power exercisable, post-devolution, by the Scottish Ministers and only with the express approval of the Parliament.

57. So far as the LPPO seeks to rely on section 7(3) of the 1974 Act, the Committee accepts that this is a power exercisable by a “judicial authority” (a term which includes the Court) to require the disclosure of spent convictions. However, it notes that this power is subject to significant restrictions. First, and fundamentally, there is nothing in section 7(3) to suggest that it may be exercised by the Court in its legislative capacity. In the Committee’s view, it is quite clear from the reference to that power being exercisable “at any stage in any proceedings” that it is exercisable by the Court in its judicial capacity when dealing with individual cases. It is unpersuaded by the suggestion that the exercise of the Court’s legislative functions could be taken to constitute a stage in proceedings: the very nature of the rule-making function is that the resulting rules apply in all cases, and there would be no exercise of the section 7(3) power in each individual case. The Committee also notes that this power is exercisable only where the authority, in relation to the proceedings, considers that justice cannot be done without admitting evidence of spent convictions. The LPPO has not identified why it would invariably be the case that justice could not be done, where a lay representative is involved, unless that lay representative discloses spent convictions.

58. The Committee accordingly considers that the LPPO has not been able satisfactorily to explain how the Court may, by Act of Sederunt, disapply the provisions of section 4 of the 1974 Act. It does not consider that section 5 of the 1988 Act confers any such power. Furthermore, it is unpersuaded that section 7(3) of the 1974 Act is capable of being exercised in a blanket fashion by the Court in its legislative capacity. It appears to the Committee that section 7(3) is intended for use by any court when exercising its judicial functions on a case-by-case basis in individual court proceedings.

59. For these reasons, the Committee considers that it is doubtful whether this instrument is intra vires in so far as it inserts Form 12B.2 into the Rules of the Court of Session when that form is intended to require prospective lay representatives to disclose spent convictions. That provision appears to be of doubtful vires because it purports to disapply the effect of section 4(1) of the 1974 Act in the absence of any power enabling the Court of Session to make rules to that effect.

60. The Committee therefore draws the instrument to the attention of the Parliament on reporting ground (e) as there appears to be a doubt about the vires. There appears to be a doubt whether the instrument is intra vires in so far as it inserts Form 12B.2 into the Rules of the Court of Session, when the purported effect of that form is to require a prospective lay representative to make a declaration disclosing spent convictions. That provision appears to be of doubtful vires because it purports to disapply the effect of section 4(1) of the Rehabilitation of Offenders Act 1974 in the absence of any identifiable power enabling the Court of Session to make provision to that effect.

61. Furthermore, the Committee draws this matter to the attention of the Justice Committee as lead committee on the instrument. This instrument is not subject to any further parliamentary procedure but purports to make substantive provision which modifies the rights and protections of individuals and disapplies primary legislation. The Committee accordingly considers that this raises an important constitutional point about the respective functions of the Parliament and the rule-making authority, and recommends that the Justice Committee consider the matter further.

APPENDIX 6

Act of Sederunt (Rules of the Court of Session Amendment No. 3) (Miscellaneous) 2012 (SSI 2012/189)

On 19 June 2012, the Lord President’s Private Office was asked:

Form 12B.2, as inserted by the Schedule to this instrument, requires the prospective lay representative to make certain declarations. In particular, paragraph (d) requires that person to declare that he or she has no previous convictions, or alternatively to list those previous convictions. However, section 4 of the Rehabilitation of Offenders Act 1974 provides, inter alia, that a person who has become a rehabilitated person “…shall be treated for all purposes in law as a person who has not committed or been charged with or prosecuted for or convicted of or sentenced for the offence or offences which were the subject of that conviction…” and in particular that such a person shall not, in any proceedings before a judicial authority, be asked or required to answer any question relating to his or her past “…which cannot be answered without acknowledging or referring to a spent conviction or spent convictions…”. The Lord President’s Private Office is asked:

(a) Is it intended that a person who has become a rehabilitated person (and whose convictions are spent) should be required to disclose those convictions notwithstanding section 4 of the Rehabilitation of Offenders Act 1974?

(b) If that is the case, to identify the power which is relied upon to make such provision; or

(c) If that is not the case, to explain why it is considered that Form 12B.2 makes it sufficiently clear (in particular having regard to the likelihood that the form will be completed by those who are not legally qualified) that the prospective lay representative need not declare spent convictions.

The Lord President’s Private Office responded as follows: (a) Yes.

(b) The powers to make the court rules are contained in sections 5 and 5A of the Court of Session Act 1988. In particular, paragraphs (a), (b) and (ef) of section 5 are relevant for these purposes. The Lord President’s Private Office takes the view that the court’s rule-making powers also require to be read against the background of section 7(3) of the Rehabilitation of Offenders Act 1974, which enables the court, at any stage in any proceedings, to require evidence relating to a person’s spent convictions, notwithstanding the terms of section 4(1) of the 1974 Act, where the court is satisfied in the light of any considerations which appear to it to be relevant that justice cannot be done except by admitting or requiring the evidence relating to those spent convictions. Other exclusions of section 4(1) of the 1974 Act (including exclusions relating to certain types of proceedings in the Court of Session) are set out in the Rehabilitation of Offenders Act 1974 (Exclusions and Exceptions) (Scotland) Order 2003.

(c) In light of the answer to question (a), question (c) does not require to be answered.

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2011 dawns with success for Consumer Focus Scotland, Which?, campaigners & media as McKenzie Friends now available in Scotland’s Sheriff Courts

Consumer Focus Scotland logoScotland’s Consumer champion, Consumer Focus Scotland welcomes new rules on ‘McKenzie Friends’. CONSUMER FOCUS SCOTLAND have welcomed the introduction of rules on January 1 2011 clarifying the use of McKenzie Friends, or Lay Assistants in Scotland’s Sheriff Courts, finally enabling all party litigants in all Scottish courts who cannot afford or cannot obtain the services of a solicitor, to instead take along an individual of their choosing to assist their representation of their own case, a right in Scotland only enjoyed up to now by party litigants in Scotland’s Court of Session since June 2010.

McKenzie Friends for ScotlandMcKenzie Friends campaign brought together litigants, judges, consumer organisations, campaign groups, international lawyers & the media. The Court of Session’s introduction in June 2010 of the right to use McKenzie Friends in Scotland’s Highest Court only came about after a long campaign by various consumer organisations, a two year long investigation of Scotland’s Civil Justice System & recommendations from Scotland’s Lord Justice Clerk, Lord Gill contained in the Civil Courts Review, a November 2009 Court of Session ruling, work by many campaigners, and support from the original McKenzie Friend himself, Ian Hanger QC, all of which was reported right here on Diary of Injustice and in the media, eventually leading to the introduction of McKenzie Friends to Scotland’s justice system some forty years after England & Wales first introduced McKenzie Friends in 1970.

Consumer Focus Scotland announced in their Press Release : The court rules governing the use of McKenzie Friends came about following a long campaign by various organisations and individuals committed to the reform of civil justice in Scotland, including Consumer Focus Scotland.

Research conducted by Consumer Focus Scotland and the Scottish Legal Aid Board into The Views and Experiences of Sheriff Civil Court Users found that those who were unrepresented were particularly likely to be concerned about having to stand up in court on their own to address the sheriff and not being able to understand the language being used by the sheriff and other legal professionals.

The research suggests that unrepresented litigants might benefit from the opportunity to have a McKenzie Friend with them in court, who could provide them with moral support and other appropriate assistance. By helping the litigant to present their case better there are also potential benefits for the court and the other party involved in the court action.

Gemma Crompton, Senior Policy Advocate on Legal Services for Consumer Focus Scotland, said : “It has long been our view that McKenzie Friends offer valuable support to unrepresented parties in court. They are a consumer-friendly way of allowing court users to feel more confident and better supported, making the experience of going to court less daunting. We are delighted that users of the civil justice system in Scotland now have clarity on the use of McKenzie Friends within the sheriff court, as well as the functions they are able to perform.”

Ms Cromnpton continued : “However, as with any new rules it will be crucial for the courts to make users aware that they are able to bring along someone to provide them with such support. It will also be important for these new arrangements to be monitored to determine how effective they are and to ensure that they are meeting the needs of users of the civil justice system in Scotland.”

The rules clarifying the use of McKenzie Friends across Scotland’s Sheriff Courts are contained in the Act of Sederunt (Sheriff Court Rules) (Miscellaneous Amendments) (No. 2) 2010 although earlier hopes the Sheriff Courts would break from some of the stringent conditions imposed on the use of McKenzie Friends in the Court of Session have been dashed, and also, notably, any expenses incurred as a result of using a McKenzie Friend are not recoverable, at least for now.

The Sheriff Court rules, spread across the court process of Ordinary Cause, Summary Cause, Summary Application, & Small Claim Rules in the Act of Sederunt (Sheriff Court Rules) (Miscellaneous Amendments) (No. 2) 2010 read as follows :

“Lay support :

2.2—(1) At any time during proceedings the sheriff may, on the request of a party litigant, permit a named individual to assist the litigant in the conduct of the proceedings by sitting beside or behind (as the litigant chooses) the litigant at hearings in court or in chambers and doing such of the following for the litigant as he or she requires—

(a)providing moral support; (b)helping to manage the court documents and other papers; (c)taking notes of the proceedings; (d)quietly advising on— (i)points of law and procedure; (ii)issues which the litigant might wish to raise with the sheriff; (iii)questions which the litigant might wish to ask witnesses.

(2) It is a condition of such permission that the named individual does not receive from the litigant, whether directly or indirectly, any remuneration for his or her assistance.

(3) The sheriff may refuse a request under paragraph (1) only if— (a)the sheriff is of the opinion that the named individual is an unsuitable person to act in that capacity (whether generally or in the proceedings concerned); or (b)the sheriff is of the opinion that it would be contrary to the efficient administration of justice to grant it.

(4) Permission granted under paragraph (1) endures until the proceedings finish or it is withdrawn under paragraph (5); but it is not effective during any period when the litigant is represented.

(5) The sheriff may, of his or her own accord or on the incidental application of a party to the proceedings, withdraw permission granted under paragraph (1); but the sheriff must first be of the opinion that it would be contrary to the efficient administration of justice for the permission to continue.

(6) Where permission has been granted under paragraph (1), the litigant may— (a)show the named individual any document (including a court document); or (b)impart to the named individual any information, which is in his or her possession in connection with the proceedings without being taken to contravene any prohibition or restriction on the disclosure of the document or the information; but the named individual is then to be taken to be subject to any such prohibition or restriction as if he or she were the litigant.

(7) Any expenses incurred by the litigant as a result of the support of an individual under paragraph (1) are not recoverable expenses in the proceedings.”.

So, what are you waiting for ? Cant find a lawyer who will represent your case or honestly handle your legal affairs in court because maybe the case involves litigation against a law firm, a lawyer or perhaps the legal profession feel your case or your right of access to justice is not in their own best interests to pursue ?

You could potentially save tens of thousands of pounds by using a McKenzie Friend instead of costly law firms who may be more interested in stringing you along for a few fee demands rather than swiftly progressing your litigation through the court. If you do choose to use a McKenzie Friend, and want your case reported in the media, something which may well benefit your case or others who may wish to use a McKenzie Friend instead of a lawyer, do drop me or one of the team a line at scottishlawreporters@gmail.com with details of your case and how you are being treated in the court.

You may also wish to show your gratitude to Consumer Focus Scotland for all their work later this year by making your opinions on their championing of consumer issues affecting Scots when the Coalition Government at Westminster launch a consultation over their very anti-consumer decision to scrap Consumer Focus. I will report more on the consultation when it is announced, and hope many of my readers will lodge submissions asking for the retention of Scotland’s Consumer Champion at a time when their services are needed even more.

 

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

Lord GillScotland’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 ScotlandLaw 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.”

Civil Courts Review Consultation Paper 2007 - McKenzie Friends for Scotland2007 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 logoConsumer 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 logoWhich? 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 recommends McKenzie Friends captionsLord 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.”

Ian Hanger QC submission to Scottish Parliament McKenzie Friend petition 1247A 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 WoolmanLord 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

Lord Hamilton judicialMcKenzie 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.

McKenzie Friends for ScotlandThe 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.

 

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Scottish Government’s response to Civil Courts Review : Class Actions, more cases to Sheriff Courts, & faster, easier access to justice ‘over years’

Lord GillLord Gill’s Civil Courts Review receives Government backing. PROPOSALS for civil justice reform including the implementation of Class Actions, increasing the financial limits of cases in Sheriff Courts, creation of a new judicial tier & ‘better case handling’ have finally been announced today by the Scottish Government in response to the Lord Justice Clerk, Lord Gill’s highly critical 2009 report, the Civil Courts Review, which branded Scotland’s civil justice system as being “a Victorian model that had survived by means of periodic piecemeal reforms”, to the point of being such a failure at providing Scots with access to justice, “its procedures as frustrating and obstructive rather than facilitating the achievement of justice.”.

The announcement today by the Scottish Government, follows yesterday’s Law Society of Scotland’s response to Lord Gill’s Civil Courts Review, this time giving the current SNP administration’s political version of which of the proposals made by Lord Gill will actually be implemented. Unsurprisingly, it will take the Scottish Government several years to bring in the proposed reforms, meaning the current Victorian state of Scotland’s justice system will continue for as long as possible a little longer.

Kenny MacAskillJustice Secretary Kenny MacAskill announced Scottish Government’s response to Civil Courts Review. The Justice Secretary Kenny MacAskilll, making a surprise appearance to announce the Government’s response (surprising in that it has been so far left to Communities Safety Minister Fergus Ewing to lead the Holyrood debates on the Civil Courts Review proposals), said : “I thank Lord Gill and the members of his project board, Lord McEwan, Sheriff Principal James Taylor and Sheriff Mhairi Stephen, together with all the members of the broader policy group and others who also participated in the review, either as individuals or as representatives of organisations. Their collective contributions have provided a landmark in the development of Scottish civil justice.”

Mr MacAskill continued : “I am pleased to announce the Scottish Government’s commitment to taking forward the majority of Lord Gill’s recommendations, which have been broadly welcomed by Scotland’s legal community and by the Parliament. I am keen to maintain a broad consensus as we set about implementing the required changes. This will enable progress to be sustained across different sessions of the Parliament, as will be necessary with the timescales involved in fundamental change.”

Mr MacAskill’s foreword in the response goes onto state the changes Lord Gill recommends will need to take account of the current financial situation, although the Justice Secretary claimed radical steps must be taken to address waste & inefficiencies. Mr MacAskill wrote : “In taking forward the reforms, we will need to take full account of the pressure on public finances. This will significantly constrain investment in system improvements or transitional costs.” But if anything, this pressure makes reform more, not less necessary. We cannot accept that the waste and inefficiency identified by Lord Gill should be a permanent feature of the civil justice system, and must be prepared to take radical steps where necessary to address them.”

Scottish GovernmentScottish Government to ‘make justice work’ for Scotland. Mr MacAskill also said the reforms proposed by Lord Gill need to be seen in the context of the wider justice system – including criminal justice, Tribunals and other means of securing access to justice and to this end, the Minister stated the Scottish Government is to establish a major change programme, entitled “Making Justice Work”, which will co ordinate and oversee reforms across the system. Further recommendations on access to justice are due to be made by the Civil Justice Advisory Group, which has been established under the chairmanship of Lord Coulsfield and recently carried out a consultation I reported on, HERE.

Mr MacAskill concluded Lord Gill was right in his diagnosis and right in his prescription, and said it is now for the Scottish Government, the judiciary and the Scottish Court Service to ensure that this landmark report leads to the fair, just, accessible and efficient civil justice system that Scotland deserves. Lets hope these are not ‘famous last words’ on Scotland’s Victorian justice system.

Contained in the Scottish Government’s proposals are the creation of a third judicial tier, that of a new District Judge with restricted rights of onward appeal across the tiers and the handling of much court business conducted at a lower level than at present.

Court of Session Parliament HouseCourt of Session to lose business to Sheriff Courts. The Scottish Government agrees in principle that the sheriff courts could and should handle most of Scotland‘s lower value civil court business, and that the Court of Session should not handle business of low value unless this is justified by other factors, such as a wider legal significance. The Scottish Government went on to state it is therefore minded to accept the proposed limit of £150,000 for the new privative jurisdiction of the sheriff court, subject to further modelling work and that a specialised personal injury court be established as part of Edinburgh Sheriff Court.

The Scottish Government supports the recommended approach to better case handling, with case docketing, more reliance on active judicial case management and the further development of case flow management procedures in other types of action. The Scottish Government also agrees that new court rules should be developed with plainer language, providing appropriate consistency of practice across different courts.

Class ActionsClass Actions finally to be allowed in Scotland – Scots only had to wait nearly 30 years. Class Actions are also to be allowed in Scotland’s courts, the Scottish Government saying it supports in principle the recommendations that procedures for judicial review should be reformed and clarified, and that provision should be made for multi-party actions (Class Actions). I reported on the Scottish Government’s consideration of the Class Action issue, during August 2009, HERE. There will also be a review of costs & funding of litigation and the formation of a Civil Justice Council to take forward the implementation of the report and keep the civil justice system under review.

McKenzie Friends for ScotlandMcKenzie Friends proposal only made it in to present day court use due to Holyrood petition, court case & media scrutiny. Various issues already being progressed by the Scottish Government were mentioned, along with McKenzie Friends which were recommended by Lord Gill to be implemented in Scottish Courts. However most observers to the justice system see the McKenzie Friend issue as being pushed through on a more speedy note only due to the developments in one of Scotland’s longest running Court of Session civil cases last year (M.Wilson v North Lanarkshire Council & Others (A1628/01) along with the enormous push McKenzie Friends received via a public petition at the Scottish Parliament – Petition 1247 (McKenzie Friends for Scotland), none of which is actually referred to in the Scottish Government’s response issued today.

The Scottish Government’s full response to Lord Gill’s Civil Courts Review can be viewed online here : Scottish Government Response to the Report and Recommendations of the Scottish Civil Courts Review or can be downloaded directly, here : Scottish Government Civil Courts Review response (pdf)

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

Readers may also wish to gauge how Holyrood and the Scottish Government are treating the Civil Courts Review, from a report covering the last Holyrood debate on the subject, along with video footage, here : Holyrood debate reveals civil justice reforms & McKenzie Friends may be a long way off as Scottish Ministers stumble over Lord Gill review proposals

My coverage of the Civil Courts Review from its publication to the present, can be found here : Civil Courts Review – The story so far.

 

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Lord Gill’s Civil Justice reforms ‘cherry picked’ in Law Society report as lawyers rush to protect ‘Victorian’ business model over Scots access to justice

Law Society of ScotlandLaw Society finally submit their proposals to cherry-pick Lord Gill’s Civil Justice reform recommendations. AFTER well over a year since the Lord Justice Clerk, Lord Gill published his damming 2009 Civil Courts Review investigation of what he himself branded Scotland’s “Victorian” justice system, the Law Society of Scotland have today finally submitted their own recommendations, effectively cherry picking ‘some’ of the reforms recommended by Lord Gill which the Law Society feel are broadly in favour of the legal profession’s vested interests, while also recommending the Scottish Government form a Civil Justice Council for Scotland, which unsurprisingly will be driven by the Law Society itself.

Lord GillLord Gill. The Lord Justice Clerk, Lord Gill spoke at last year’s Law Society of Scotland’s 60th Anniversary Conference, castigating Scotland’s civil justice system as “a Victorian model that had survived by means of periodic piecemeal reforms”. Lord Gill went onto say Scottish civil justice fails on many counts, have notorious delays and high costs to litigants, deter claims which may be well-founded and branded its procedures as frustrating and obstructive rather than facilitating the achievement of justice. I recently reported on the one year plus, anniversary of Lord Gill’s Civil Courts Review, and the lack of any progress on the Lord Justice Clerk’s recommendations to reform Scotland’s ‘Victorian’ civil justice system, here : Civil Courts Review one year on : Scotland’s out-of-reach justice system remains Victorian, untrustworthy and still controlled by vested interests

McKenzie Friends for ScotlandLaw Society now ‘support’ the introduction of McKenzie Friends, as long as they are not paid and don’t compete with solicitors. Among the many recommendations of Lord Gill which the Law Society makes supportive comment, the question of the introduction of McKenzie Friends, which the Law Society & Faculty of Advocates both initially opposed during hearings at the Scottish Parliament into Petition 1247 (McKenzie Friends for Scotland), has now attracted a ‘qualified support’ from the Law Society.

The Law Society’s submission to the Scottish Government on the issue of McKenzie Friends states : “The Committee has had the opportunity of further debating the issues and is supportive of the introduction of McKenzie Friends. The Committee agrees that 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.”

However, and not unexpectedly, the Law Society has now revealed its official opposition to the prospect of McKenzie Friends (lay assistants) being paid for their services in Scottish courts – an opposition borne out of the Law Society’s fear of its member solicitors losing business to vastly cheaper McKenzie Friends. While Scottish McKenzie Friends are prohibited from being paid for their work, existing case law in England & Wales supports McKenzie Friends receiving some form of remuneration.

The Law Society stated, with regard to their opposition to McKenzie Friends being paid a fee : ”The Committee would be concerned if Mackenzie Friends were remunerated for their assistance. The Court of Session Rules Council has drafted a Rule on the basis that Mackenzie Friends will not be paid, which the Committee supports.”

MF spyglassLaw Society report also recommended spying on McKenzie Friends with an online register. In a sinister twist with overtones of unwarranted spying by the courts & legal profession on individuals appearing in court as McKenzie Friends, the Law Society submission to the Scottish Government also recommended keeping a register of people who appeared in Scottish courts as McKenzie Friends, enabling those individuals ‘to be monitored’. The Law Society’s justification for spying on McKenzie Friends states : “There is also a concern if Mackenzie friends provide assistance to a large number of unconnected party litigants. This should perhaps be monitored. One option would be for an on-line register of all persons who appear as McKenzie Friends.”

Consumer Focus ScotlandConsumer Focus Scotland & Lord Gill support wider public legal education, as do now the Law Society, to a certain extent. Regarding Lord Gill’s recommendation of ‘wider public legal education’, an issue championed for some time by Consumer Focus Scotland, and the subject of a recent petition (Petition 1354) to the Scottish Parliament, the Law Society’s submission states : “The Committee welcomes public legal education. The Committee believes that public legal education helps overcome hurdles which may impede access to the legal system and accordingly access to justice.”

“The Committee welcomes the current in-court advice project and believes that the project initially started in Edinburgh Sheriff Court should be extended throughout all Sheriffdoms in Scotland. At present, unrepresented litigants, through the in-court advice schemes, can receive advice before their case calls in court. These initiatives clearly improve access to justice but require to work in conjunction with a properly funded legal advice scheme giving access to advice by solicitors. Although there are other in-court advisory schemes, the one in Edinburgh is free and should be the model for other such advisers.”

Small ClaimsIt took 19 years to raise Scotland’s small claims limit from £750 to £3,000, now the Law Society wants to limit the value of Sheriff Court cases once again. Another of the Civil Courts Review recommendations, namely that of the increase in values of claims the Sheriff Court can hear, from its current level of £5,000 to £150,000, received a more frosty response from the Law Society, who, unsurprisingly, with its members potentially losing business & Court of Session appearance fees, claimed : “The Committee is very keen to retain the Court of Session as a court of first instance for suitable cases. The Court of Session is a centre of excellence, which is well respected for both the high level of judicial expertise and the guidance which it provides to the lower courts, both as a court of first instance and as an appellate court.”

The Law Society preferred a smaller increase in Sheriff Court case values, stating further in its submission : “Taking account of these views and of those who deal with other types of litigation, including commercial actions, the Committee consider that an appropriate threshold for Civil cases in the Court of Session would be not less than £20,000 and not more than £50, 000. i.e. The privative jurisdiction of the Sheriff Court should be increased from the current £5,000 to at least £20,000 but should not be more than £50,000.”

With further regard to personal injury claims & the value of cases, and Lord Gill’s recommendation that a specialist personal injury court should be created, based in Edinburgh Sheriff Court but with jurisdiction throughout Scotland, giving pursuers a choice between local access to justice or the advantages of a Sheriff Court with all Scotland jurisdiction, the Law Society categorically opposed the idea, stating : “The Committee is not persuaded there is a rationale for the introduction of a national Personal Injury Sheriff Court in Edinburgh or any other single location. The Committee still favours specialisation for Sheriffs in each Sheriffdom. Much depends on the privative level of the Sheriff Court. If appropriate specialists are employed and the threshold were to be set between £20,000 and £50,000 there is no need for a national court.”

Class ActionsScots have waited 27 years for Class Actions, will have to wait some more. On the issue of Class Actions or multi-party actions, also recommended for introduction by Lord Gill, the Law Society disagreed with some of Lord Gill’s views, doubtless in an effort to prolong the introduction of class actions to Scotland’s civil justice system. The Law Society’s submission to the Scottish Government on the question of the introduction of class actions to Scotland states : “The Committee do not agree that judicial discretion should be exercised to determine whether a multi-party litigation is an opt-in or opt-out (ie included unless they tell the court that they do not wish to be included) for claimants. The Committee consider that depriving an individual of the right to litigate requires primary legislation. This is an important question of access to justice.”

The Law Society also disagreed with Lord Gill’s recommendation that Petitions for judicial review should be brought promptly and, in any event, within a period of three months. The Law Society instead claimed : “a three month time scale is too tight to exhaust all the administrative options. Six months would be a more manageable and appropriate period, particularly if the court had further discretion in the circumstances where it was just and equitable to allow a petition outwith the period.” The Law Society went onto agree with recommendations for tests on the success of Judicial Reviews, agreeing that a ‘sift’ panel should be introduced to remove Judicial Reviews which have no chance of success, with those who fail the first test being able to appeal to a second ‘sift’ panel.

On the question of ‘mediation’ in disputes, the Law Society stated that mediation and other forms of extra- judicial dispute resolution should be voluntary, and agreed that a free mediation service should be provided for claims under the new simplified procedure. The Law Society’s submission contended “such a [mediation] service would only be successful if it is funded and publicised by the Scottish Court Service and is effectively free to the users.”

The Law Society issued a Press Release, ever-imaginatively-titled Society urges Scottish Government to implement civil justice reforms, announcing its orders to civil servants & Scottish Ministers submission to the Scottish Government. Kim Leslie, convener of the Society’s Civil Justice Committee, said: “Lord Gill’s report identifies a number of structural and other weaknesses currently affecting Scotland’s civil courts, and makes recommendations designed to make radical improvements which, if implemented, will dramatically alter the delivery of civil justice in Scotland. We made submissions to the initial consultation as part of Lord Gill’s review and welcomed publication of the report in September 2009. We are now keen to see implementation of some of the key recommendations to improve civil justice in Scotland.”

“The scope of the review was huge, and the Society’s Civil Justice Committee has not commented on every recommendation in the review, however one of our own key recommendations would be to separate civil and criminal business within the Sheriff Court because many of the current problems arise from the huge amount of judicial time which is spent dealing with summary cases.”

“We also support the view that there should be specialisation within the judiciary, in particular in administrative, environmental and planning law as well as family, commercial and personal injury cases. Such specialisation could be introduced without the need for primary legislation and at no great cost to the public purse – there has already been a successful pilot in Glasgow Sheriff Court of such a system and think this would be beneficial if rolled out across Scotland. The committee is also keen that there should be the option of using a commercial court in each Sheriffdom.”

The Law Society’s Press Release went onto say the Society’s Civil Justice Committee has also backed increasing the threshold for civil cases in the Court of Session, Scotland’s highest civil court. Currently the threshold for cases to be heard in a Sheriff Court is £5,000 and the committee believes this should be raised to at least between £20,000 and £50,000 to allow business to be directed to the appropriate level competent to deal with it.

Ms Leslie said: “Any increase in the threshold for cases to go before the Sheriff Court must coincide with the introduction of specialist sheriffs. We would also endorse the creation of a third tier, dealing with appropriate cases to alleviate pressure on the civil justice system.

“We are in broad agreement with many of the recommendations made in the Civil Justice Review, although we have also taken the opportunity to outline reservations on some of Lord Gill’s recommendations, such as a national Sheriff Appeal Court for civil appeals. We would now urge the Scottish Government to implement some of the recommended reforms including the establishment of a Civil Justice Council for Scotland, which would bring in the cost and funding of litigation as part of its remit.”

“We are keen to see the introduction of workable improvements to Scotland’s civil justice system for all those who use it and work within it and look forward to working with government in bringing forward reform.”

The full Law Society of Scotland Civil Justice Committee report can be read at: Law Society of Scotland’s Civil Justice response or readers can directly download it as a pdf, here : Law Society Civil Justice response

Protecting law firms business & extortionate fees, far & above over the rights of ordinary Scots access to justice doesn’t come any more obvious than today’s Law Society’s response to the recommendations contained in Lord Gill’s Civil Courts Review.

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

Readers may also wish to gauge how Holyrood and the Scottish Government are treating the Civil Courts Review, from a report covering the last Holyrood debate on the subject, along with video footage, here : Holyrood debate reveals civil justice reforms & McKenzie Friends may be a long way off as Scottish Ministers stumble over Lord Gill review proposals

My coverage of the Civil Courts Review from its publication to the present, can be found here : Civil Courts Review – The story so far.

 

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Sheriff Courts ‘unfair’ delay on McKenzie Friends until 2011 may impact on current cases of party litigant’s access to justice in Scotland’s lower courts

Edinburgh Sheriff CourtMcKenzie Friends in Sheriff Courts are delayed until 2011. MCKENZIE FRIENDS in Scotland are back in the news today as it was revealed Scotland’s Sheriff Courts are to take several more months before introducing similar rules already implemented in the Court of Session during mid-June 2010 which allowed the internationally acclaimed courtroom helper into Scotland’s civil courts some forty years after McKenzie Friends first came into existence in England & Wales. It had been thought McKenzie Friends would have appeared in the Sheriff Courts by the end of summer 2010.

Lord Hamilton 2Lord Hamilton enacted ban on McKenzie Friends being paid in Court of Session, Sheriff Courts may take different approach. The eight month delay has been caused apparently by considerations of issues such as whether expenses should be recoverable by a litigant who has the support of a McKenzie Friend. McKenzie Friends can already receive remuneration for their services in English courts, however the Lord President’s introduction of McKenzie Friends to Scotland’s court of session saw a ban on McKenzie Friends being able to charge for their services, a restriction some observers believe came about after the legal profession voiced concerns over their loss of business.

A statement (pdf) given to the Scottish Parliament’s Petitions Committee by the Sheriff Court Rules Council secretariat in response to questions over the timetable of implementation revealed : “I can confirm that the Sheriff Court Rules Council considered draft rules for the use of a McKenzie friend in civil proceedings in the sheriff court at its meeting on 6 August. The Council agreed with the recommendation of its working group that a different approach to that of the Court of Session was necessary namely that the procedure involved should be less formal with no certification as regards the suitability of the individual which the party litigant wishes to assist in the conduct of the proceedings being required. An amended draft will be considered by the Council at its next meeting on 5 November.”

The statement to the Petitions Committee continued : “The delay has arisen as the Council wishes to adopt a similar approach in principle to that of the Court of Session but at the same time wishes to reflect the different practices and procedures that operate within the sheriff court. In particular, there is a question whether expenses should be recoverable by a litigant who has the support of a McKenzie friend. This has been excluded in the Court of Session Rules. A decision has still to be taken as to whether this exclusion should also apply in the sheriff court.”

The statement concluded : “The Council will consider other draft rules in relation to the recommendations contained within the Civil Courts Review. Subject to the drafts being approved by the Council, it is anticipated that the rules will be submitted to the Lord President with a view to the draft instrument being made in January 2011 with the rules coming into force in February 2011.”

Legal insiders & consumer groups today criticised the long process of bringing McKenzie Friends to Scottish courts.

An official from one of Scotland’s consumer organisations said the implementation process “could have been handled better, ensuring McKenzie Friends came into play in the Court of Session & the Sheriff Courts at the same time”.

A solicitor pointed out today while it had now been the case for some months that party litigants could apply for a McKenzie Friend to assist them in the Court of Session, party litigants in Scotland’s Sheriff courts were continuing to face a long wait on being able to use a McKenzie Friend, thus raising the possibility Sheriff court users may be facing a ‘loss of access to justice’.

On the subject of expenses & remuneration of McKenzie Friends, he said : “Personally I have no difficulty with McKenzie Friends in Scotland being able to charge for their services, so long as their service is a valued one and productive for the party litigant.”

He continued : “Allowing McKenzie Friends to be paid may well encourage groups such as law students & others willing to act as McKenzie Friends, assisting access to justice and giving some of our solicitors of the future valuable experience in court from the perspective of those who choose to represent their own interests.”

I have previously reported on the differences between Scotland & the rest of the UK on the remuneration of McKenzie Friends, here : Lord President softens rules on Scottish McKenzie Friends, remuneration issue still out of step with England & Wales

The Petitioner, Stewart MacKenzie raised the issue of the Sheriff Court delay, writing in a letter (pdf) to the Petitions Committee : “Whilst I am very pleased that the Sheriff Court Rules Council propose a less formal process for McKenzie Friends in Sheriff Courts, with “no certification as regards the suitability of the individual which the Party Litigant wishes to assist in the conduct of the procedure being required”, I am however very disappointed at the amount of time that the Sheriff Court Rules Council are taking to bring McKenzie Friends into force in the Sheriff Courts, particularly where they say that it could be February of 2011 before matters are finalised.”

Mr MacKenzie continued, critical of the delays : “That being so and given the fact that Lord Hamilton brought McKenzie Friends into force in the Court of Session on 15th June 2010, the Sheriff Court system’s implementation of McKenzie Friends will be at least eight months behind that of the Court of Session. I would also say that this may not have been fair to Party Litigants, whose cases are currently in the Sheriff Court system.”

Clearly there should have been a more uniformed approach to bringing McKenzie Friends to all of Scotland’s courts, particularly considering the time many agencies have taken to input on Petition 1247

You can read my earlier coverage of the campaign to bring McKenzie Friends to Scotland, and how having a McKenzie Friend in court may assist party litigants here : McKenzie Friends for Scotland : The story so far.

I reported on a useful guide for party litigants in the Court of Session, which includes the use of McKenzie Friends, here : Access to justice improved : McKenzie Friends advice now included in guide for Court of Session’s party litigants

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

 

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Holyrood Petitions Committee to keep McKenzie Friend campaign open until Sheriff Court plans are scrutinised by MSPs & formally introduced

Petitions CommitteeHolyrood’s Petitions Committee heard latest on McKenzie Friends Petition. THE PETITIONS COMMITTEE of the Scottish Parliament have said they will not close Petition 1247 – McKenzie Friends for Scotland until MSPs have seen and had a chance to comment on the proposals from the Sheriff Court Rules Council to implement McKenzie Friends (otherwise known as lay assistants) in Scotland’s Sheriff Courts, following on from the Lord President’s Act of Sederunt, passed earlier in the summer which introduced McKenzie Friends to Scotland’s Court of Session in mid June, some 40 years after McKenzie Friends were first introduced to the English court system.

Nigel Don Petitions CommitteeNigel Don MSP (SNP) said Petition should not be closed until Parliament scrutinises Sheriff Court plans. During the Petitions Committee’s Tuesday session, Committee member Nigel Don said progress was being made ‘very fast’ and expressed his gratitude to the Lord President for introducing McKenzie Friends to Scotland’s Court of Session. Mr Don went onto say the ”Sheriff Court Rules are being dealt with but they seem to have gone a little bit slower” and said he believed Petition 1247 should not be closed until the rules for the use of McKenzie Friends in Scotland’s Sheriff Courts are “in the public domain” and the Petitions Committee has a chance to see & comment on the Sheriff Court Rules Council proposals.

Mr Don’s comments came after the Petitioner, Perth based law reform campaigner Mr Stewart MacKenzie had written to the Petitions Committee urging members to contact the Sheriff Court Rules Council for a clearer timescale for the completion of the implementation of McKenzie Friends in Scotland’s Sheriff Courts, bearing in mind the Court of Session and the Lord President had managed to complete the process in around five weeks.

Petitions Committee Convener Rhona Brankin MSP concluded the discussion on Petition 1247, by continuing the petition until the Committee receive more information.

Petitions Committee 7th Sept. 2010 – Nigel Don : Parliament should have a chance to see & comment on the Sheriff Court rules for McKenzie Friends before petition is closed. (click image below to watch video)

I have reported previously on the Sheriff Court Rules Council’s discussions on the introduction of McKenzie Friends to Scotland’s Sheriff Courts, here : Sheriff Court Rules Council reveals McKenzie Friends on course to help party litigants in Scottish Sheriff Courts by end of summer 2010

While party litigants in Scotland’s Court of Session have been able to apply for a McKenzie Friend to assist their case since mid June of this year, party litigants in Scotland’s Sheriff Courts, where most hearings in which McKenzie Friends will have a ‘helping hand’ take place, will have to wait until the Sheriff Court Rules Council formalise their plans for rules governing the use of lay assistants in Sheriff Courts before being able to apply to a Sheriff for lay assistance.

A spokesperson for the Sheriff Court Rules Council stated : “I can advise that the Sheriff Court Rules Council is still considering the procedure for McKenzie friends within the Sheriff Court and, in particular, is considering whether the approach by the Court of Session is appropriate in the Sheriff Court. At this stage, I am not able to advise when the provisions will be commenced.”

McKenzie Friends for ScotlandMcKenzie Friends for Scotland. You can read my earlier coverage of the campaign to bring McKenzie Friends to Scotland, and how having a McKenzie Friend in court may assist party litigants here : McKenzie Friends for Scotland : The story so far. All written submissions for the McKenzie Friend petition (Petition 1247) at the Scottish Parliament can be read here : Written submissions for Petition 1247, McKenzie Friends for Scotland

 

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