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.