Legal profession ‘afraid of losing profits & control of access to justice’ as Faculty of Advocates protest against McKenzie Friends for Scotland

The Faculty of Advocates oppose the introduction of McKenzie Friends in Scotland. The Faculty of Advocates have made an amazing claim to the Scottish Parliament that only lawyers should have access to the courts in Scotland, thus become the latest branch of Scotland's embittered legal profession to object to wide ranging reforms to access to justice in Scotland which include the introduction of McKenzie Friends to Scotland's courts, some FORTY YEARS after their introduction in England & Wales which has proved hugely successful for the interests of justice in the rest of the UK over the past four decades and for many people around the world who are also able to use McKenzie Friends in many jurisdictions.

Scotland's Advocates claimed only lawyers or advocates should have access to the court. The Faculty of Advocates said in their objections to the McKenzie Friend petition at Holyrood : "It would generally not be desirable for litigants to take part in the legal process without legal representation. It is accepted that there may be instances where the facts are so straightforward that it would appear at first sight that the claim could be dealt with by a party on his own. It is also accepted that there are occasions when a litigant either cannot afford to be assisted by a legal adviser, has chosen not to engage such assistance due to a lack of faith in lawyers in general, or simply is unable to find a lawyer who is willing to represent him."

The Faculty of Advocates then attempted to justify their stance by claiming people who represent themselves in court only have to do so because lawyers have told them their case 'is hopeless' : "In the last of these instances, on occasions it happens that clients receive advice that their case is hopeless and the client does not take the advice. It usually proves difficult for a client to persuade a different lawyer to act, when that advice has been given. It may be arrogant of the legal profession to presume that advice given by lawyers is correct. But often it is. The difficulty for the justice system is that a litigant who is intent on presenting a case will occasionally do so in an unfocussed way, perhaps missing a potentially good point while insisting on points of no merit."

You can read the Faculty of Advocate’s entire submission to the Scottish Parliament on the issue of McKenzie Friends, HERE

Clearly this is about the Faculty controlling access to justice, rather than being about the integrity of someone’s legal affairs and whether they have a presentable case in court or not. We are therefore left with little doubt the legal profession wants to retain its monopoly control over access to justice in Scotland, which is clearly in the Faculty's plan, in partnership with the Law Society of Scotland, who also oppose the introduction of McKenzie Friends in Scotland.

You can read my earlier report on the Law Society of Scotland’s resistance to the introduction of McKenzie Friends in Scotland’s courts here : 'Control Freaks' at Law Society say “No” to McKenzie Friends as Holyrood submission signals resistance to Lord Gill's civil justice review

A spokesman for one of Scotland's consumer organisations hit out today at the arrogance of the Faculty's claims, branding them selfish and obstructive, saying : "The Faculty's attitude towards access to justice in Scotland is astoundingly arrogant and it is clear they are desperately afraid of the impact that McKenzie Friends will have on their business, to the point they will use any means to justify the legal profession's control over who has access to a court in Scotland."

She continued : "What we all must remember is that access to justice is not about lawyers and advocates making money, it is about consumers being allowed to have a fair hearing in the eyes of the law. The introduction of the facility for court users in Scotland to choose a McKenzie Friend to assist the presentation of their case will bring us into line with the rest of the UK where McKenzie Friends have operated with great success for forty years, and have happily coexisted with solicitors & barristers work in the English courts, without all the fuss and protests we are now seeing from the Scottish legal profession prior to their introduction north of the border."

A Holyrood insider branded the Faculty's objections to McKenzie Friends as being ‘pathetic’, saying : " The Faculty are out to make sure people are forced to keep paying huge fees for advocates to appear in the courts on their behalf. Obviously they see McKenzie Friends as being competition to their services and that is why they don't want McKenzie Friends to be allowed in Scotland."

A client who recently found out his solicitor had asked for two further counsels opinions after the case had actually been settled said : “Everyone thinks getting an advocate to represent you in the Court of Session is a guarantee to win. It is not and if McKenzie Friends were available I would have taken one to begin with. I have wasted over £50,000 on fees for advocates who ended up just complicating the case which ended up having to be settled when the company I was suing got fed up of paying the legal fees for their lawyers who were just keeping themselves going in the court for no reason other than to be there. The two accounts I now have for legal services even after we had agreed to settle shows to me they were just out to make as much money as possible and were probably miffed we ended up settling where the lawyers hoped it would all go on for years.”

Scottish Court Service say Government and judiciary will have to work together on McKenzie Friends. While the Faculty of Advocates are smarting over the idea of introducing McKenzie Friends in Scotland's courts, which as they see will 'violate' their right to earn as much money as possible out of clients who are forced to use advocates & solicitors to pursue legal cases, the Scottish Courts Service stepped in with their own submission on the petition to bring McKenzie Friends to Scotland, confirming any action to introduce McKenzie Friends in the Scottish justice system would have to be a joint effort between the judiciary and the Scottish Government.

Scottish Court Service letter to Holyrood Petitions Committee. Neil Rennick, the Director of Policy & Strategy for the Scottish Court Service said : "I can confirm that any decision about the potential introduction of a “McKenzie Friend” facility within the courts would be a policy matter for Scottish Ministers in consultation with the judiciary.” Mr Rennick went onto clarify current the SCS current policy on McKenzie Friends in Scotland, which may well change after the expected recommendations by the Lord Justice Clerk Lord Gill, who will call for the introduction of McKenzie Friends in Scotland in his forthcoming Civil Court Review. Mr Rennick continued : "I note that you have written separately to the Scottish Government and that they have indicated that there are no current plans to introduce such a facility, pending consideration of any relevant recommendations from the current Civil Courts Review, chaired by the Rt Hon Lord Gill. No actions are therefore being taken by the SCS on this matter at this time. The SCS will contribute, at the appropriate time, to any consideration of the operational implications for the courts of matters arising from the Civil Courts Review."

A spokeswoman for the Civil Courts review team when approached for comment confirmed they would be dealing with the issue of McKenzie Friends in Lord Gill's civil courts review, which is hoped to be published on or around 30 September 2009.

The situation as currently stands where our access to justice is controlled and restricted by the legal profession on the grounds they have to make huge profits out of the public, cannot be allowed to continue. Therefore, given the obstructive attitude of Scotland's legal profession from the advocates and solicitors towards the introduction of McKenzie Friends in Scotland's courts, it is a must that Parliament and the Scottish Government move on the McKenzie Friend petition, and Lord Gill's expected recommendations, to ensure the Scots public have the right of access to Scotland's courts, and the choice to use a legal representative, or a McKenzie Friend, as is appropriate to their case.

You can read my earlier articles on the campaign to bring McKenzie Friends to Scotland HERE and I urge readers, and anyone experiencing difficulties in obtaining access to justice or access to legal representation to support the McKenzie friend Petition 1247 by contacting the Petitions Committee via their email at : petitions@scottish.parliament.uk