Thursday, October 08, 2009

Holyrood asks Scotland's Chief Judge Lord Hamilton to implement McKenzie Friends after 40 years of legal establishment’s resistance to court reforms

Lord HamiltonScotland's Lord President Lord Hamilton. FORTY YEARS after McKenzie Friends entered into the English Courts system, Scotland's Chief Judge Lord Hamilton, the Lord President, is to be asked by the Scottish Parliament's Petitions Committee to implement McKenzie Friends in Scotland's courts, after growing calls from MSPs were made at this week's public petitions hearing on Petition 1247 (McKenzie Friends for Scotland) in support of implementing the long held right in England & Wales for courtroom assistance for unrepresented litigants.

Lord WoolmanScottish Judge Lord Woolman claimed McKenzie Friends were a matter for Parliament, not the Court. However, while Lord Hamilton is to be asked by Parliament on the implementation of McKenzie Friends in his own courts, I can exclusively reveal the first test request of a McKenzie Friend since the publication of Lord Gill's Civil Justice Review last week FAILED after High Court judge Lord Woolman rejected a request for a McKenzie Friend last Friday, made by a party litigant in a 'high value' damages case. It transpires this was the second refusal by the Court to allow the request of appearance of a McKenzie Friend in the same case, the Court claiming on this latest occasion that this was a matter for, and currently being discussed by, the Scottish Parliament.

Lord GillLord Gill’s recommendations on McKenzie Friends were tossed aside by fellow judges the day after publication. The courts resistance to allowing a McKenzie Friend, even apparently against the recommendations of Lord Gill’s Civil Courts Review, sets the scene for an extraordinary tussle between the Scottish Parliament and Scotland's Judiciary over the Courts responsibilities to ensure fair & equal access to justice for both sides, with, on one side, the Scottish Parliament Petitions Committee seeking to persuade Lord Hamilton to introduce McKenzie Friends in Scotland's Courts, and elements of the Judiciary on the opposing side, claiming it is a matter solely for the Parliament, and nothing to do with the court.

While it appears Scotland's judiciary, along with the Law Society of Scotland, Faculty of Advocates, and even the Scottish Government are all opposed in some way or another to the introduction of a McKenzie Friend to assist party litigants, the English courts introduced the McKenzie Friend facility without much problem some forty years ago.

The English legal system, along with their courts and legal services market, did not collapse into anarchy, as the Scottish legal profession seem to be claiming will happen if McKenzie Friends were introduced in Scotland. Rather it appears the driving force behind objections from the Scottish legal establishment to the introduction of McKenzie Friends, are solely based on the fact solicitors will lose fees if the public decide to take a McKenzie Friend along with them to court, instead of a costly 20,000 plus solicitor & legal team who may very well end up ruining their case as the statistics seem to indicate in Scotland's currently poorly served legal services market.

Now, to the report of this week's Petitions Committee hearing.

Holyrood's gem, Margo MacDonald speaks in support of McKenzie Friends petition, joined by the petitioner's constituency MSP, Murdo Fraser.


margo macdonaldMargo MacDonald spoke of a McKenzie Friend 'being a right' in England & Wales. Margo MacDonald attended this week's Petitions Committee hearing and spoke further on the advantages of allowing McKenzie Friends in Scotland's courts. Margo MacDonald said : "This is a system of support for litigants in courts which has been running successfully in England for a long time. It seems to offer a greater level of support and a feeling of security for many people going into court to plead for themselves. The McKenzie Friend does not plead directly for them, the McKenzie Friend offers advice quietly given perhaps hands over relevant papers at the relevant time perhaps back up work"

"I’ve looked at the response from Lord Gill because it was referred to the Faculty of Advocates who said 'we will wait to see what Lord Gill's review says' and he's not all that keen, but I think most parts of the Scottish legal establishment are not all that keen on having lay people in court and they are very very careful about it"

"Now I think they do so for reasons I approve of in they want to maintain their very high standards of advocacy and protection of the client in the Scottish courts but in this one i think we could take a leaf out of what happens in the English courts and add a greater level of support for litigants who may be rather overawed by court procedure"

Margo MacDonald also reminded the Petitions Committee that having a McKenzie Friend in England & Wales was a right, and not something which should be under the sole approval of a Sheriff or the court, stating : "Lord Gill I think suggests it should be up to the sheriff to decide whether or nota McKenzie Friend would be allowed to be alongside the litigant whereas in England I think they have a right to be there"

murdo_fraserScottish Conservative Murdo Fraser MSP also supports the introduction of McKenzie Friends in Scotland. Murdo Fraser, attending the Petitions Committee in support of the McKenzie Friends Petition said "Mr MacKenzie is a constituent of mine and I'm happy to be here to support the petition because I actually agree with everything Margo MacDonald has just said."

He continued :"Can I say I think the proposal from Mr MacKenzie is a very reasonable proposal and makes a sensible suggestion. The McKenzie friend is there to provide assistance to a party litigant. It was interesting to read the response on the Civil Courts Review which very much majored on the issue of whether the McKenzie Friend should be given rights to be heard in court. Now as I understand from Mr MacKenzie that is not the issue. He is not actually seeking for the McKenzie Friend to be heard in court. All he is seeking is the right of a party litigant to bring somebody with them to sit beside them and provide them with assistance."

"There is nothing I read in the representations that really strongly argue against that. The proposal is supported by Which?, the Scottish Consumer Council and Money Advice Scotland. I think it would be a fairly simple thing to introduce and I think it would be very much to the benefit of party litigants and improve the justice system."

nigel_donNigel Don MSP, Petitions Committee member and Parliamentary liaison officer to Kenny MacAskill Nigel Don said "Can I first recognise that previous contributors have brought out the distinction between those who are there as a friend and those who are there as a right of audience which is one I wanted to make sure we covered."

He continued : "It does seem to me from everything so far that I've heard this is something the court could introduce themselves. I don't think it took Lord Gill to say it would be a good idea. In fact I think he has gone beyond McKenzie Friend as you said, and therefore I wonder whether in fact the first person we should write to is actually the Lord President because it is he who runs the courts and ask him whether there are any plans within the courts system to alter their practice because it is he who presides over them as the government doesn't actually deal with this."

"We might secondly want to write to the government asking its attitude but I think we should start by asking the Lord President if whether he feels there is something he can do. I think he can but he is the judge of that and whether he is minded to do so."

By way of response to that, Margo MacDonald pointed out the precedent of having a McKenzie Friend in Scotland may have already been established in the Scottish Land Court

bill_butlerPetitions Committee member Bill Butler MSP (Scottish Labour). Bill Butler said "Just to say I agree with everything that been said. We have some quotes from Lord Gill's review where he's very careful with the phraseology he uses or employs, he's for it and in certain circumstances a person being able to address the court on behalf of a party litigant. I do think we should follow Nigel’s suggestions and write to the government asking if they will come on board."

While the Petitions Committee has agreed to write to Lord Hamilton in the terms specified, in all honesty I do not think Lord Hamilton will budge on the issue of McKenzie Friends, or indeed many of the other reforms in Lord Gill’s Civil Courts Review, which appear to be on the ‘watering down list’ at the Scottish Government’s Justice Department. Even if the Lord President does manage to do something on McKenzie Friends without the need of a legislative push, we can be assured there will be a set of intolerable conditions that no English court, or indeed any court in other national jurisdictions where McKenzie Friends exist, would accept.

Kenny MacAskillJustice Secretary Kenny MacAskill blamed Lord Hamilton for delays in rights of audience approvals. We only need to look back to how the Lord President and the Scottish Government handled the introduction of wider rights of audience, via Sections 25-29 of the Law Reform (Miscellaneous Provisions) Scotland Act 1990, where after about ten years of the Association of Commercial Attorneys filing applications for rights of audience, a blame game broke out between Justice Secretary Kenny MacAskill and Lord Hamilton over who was delaying longer than the other, which I reported on earlier, here : Justice Secretary MacAskill blames Lord President for delays in ‘access to justice’ applications row and which you can watch via video clip, here :

The Blame Game : Kenny MacAskill piles blames for access to justice delays on Lord Hamilton.

McKenzie Friends for Scotland should be introduced without further delay. However, given the continuous resistance from the legal profession and the courts system itself, I feel there must be legislation to ensure there are proper rules laid down on the use of McKenzie Friends, and the right of an individual to request and receive the services of a McKenzie Friend laid down in no uncertain terms to the court, a right that people in the rest of the United Kingdom enjoy.

You can read my earlier reports about McKenzie Friends and the campaign to introduce them to Scotland's courts system, here : McKenzie Friends for Scotland

36 comments:

Anonymous said...

Going to be a difficult one to refuse with all this support.

Keep stirring it Peter !

Anonymous said...

FAT CHANCE Lord Hamilton will do anything we could rely on later for our rights.

Anonymous said...

Typical of Nigel Don to further delay matters by suggesting the Lord President become involved.

The Lord President could have improved matters and brought the Scotish system of Civil Justice up to date at any point in the last 40years - but did not.

The inconsistent terms employed by committee members such as 'it seems that Lord Gill is saying...........' are clearly designed to buy vested interests such as the Law Society time, given that it is absolutely clear from the terms of Lord Gill's review that he is recommending the introduction of Mackenzie friends AND that they be allowed to address the Court.

Anonymous said...

Clearly Margo knows her stuff and its good to see others joining the cause.

However some of the committee seems a bit naive or is that by design ?

Anonymous said...

Whats this case you are talking about where a McKenzie Friend was refused ?

Anonymous said...

I agree with you Peter I dont think Lord Hamilton will do anything on McKenzie Friend.

Make it a law and he will have to.

Anonymous said...

All very well but who is going to stand up and answer WHY we have had to wait 40 years to get these McKenzie Friend reforms for Scotland ?

Will any of these politicians or judges actually answer that question truthfully ?

Anonymous said...

I hear you are causing a lot of problems for the Law Society with this campaign Peter.Good for you.Keep rattling their cages and good luck for your McKenzie Friends!

Anonymous said...

Well I'm sure this is all going positive but we got the parliament in 1999 so where have all these msps been until now on McKenzie Friends ?

1999-2009 = 10 years and you say McKenzie Friends happened 40 years ago in England (I checked that just to make sure) That leaves 30 years of do nothing for Scottish mps and 10 years of the same for msps.

Not a good advertisement for devolution

Anonymous said...

I cant find that on the Holyrood website so I take it you transcribed it.What a guy !

Keep up the good work Peter !!!!!!

Anonymous said...

"Holyrood's gem, Margo MacDonald speaks in support of McKenzie Friends petition, joined by the petitioner's constituency MSP, Murdo Fraser."

Spot on,Peter.Margo is the best MSP Scotland has and a credit to the Parliament.I'd go so far as to say she is the only trustworthy MSP in the Parliament.

GO MARGO !!!!!!!!

Anonymous said...

and another 40 years will pass before Hamilton does anything - see this is what you get when judicial dictatorship runs the country - the same judicial dictatorship that call themselves independent from everyone and want to keep it that way

a good example of that might be Zimbabwe where Hamilton and his cronies would advance very quickly

Anonymous said...

I like the 2nd clip where MacDuffer tries to shift the blame on his eminence Lord Hamilton.Good one !
As you say we will be in for more of the same on this McKenzie Friend business.

Anonymous said...

Woolman's refusal has already told us how Hamilton will treat McKenzie Friends, in the bin I fear.

Anonymous said...

Clearly a monopoly is in place here and wroking very effecitively, if to the detriment of the consumer.

Pity the OFT is not up to the job, so send your complaints to your MEP and the EU Competition Commissioner.

Anonymous said...

No matter who stands in the way of this I can see it happening even if the Law Society tie themselves to the railway line.

Anonymous said...

I also dont have a problem with allowing McKenzie Friends.
The LSS needs to wake up or be kicked into touch (by you!)

Anonymous said...

Whats your thoughts on this : http://news.bbc.co.uk/1/hi/england/north_yorkshire/8298700.stm

Woman wins RSPCA will challenge

Christine Gill: "It's all been tremendously hard"

A woman who contested her parents' will after they left their £2.34m estate in North Yorkshire to the RSPCA has won her legal battle.

Christine Gill, 58, claimed her father forced her mother into making the will and she had been assured she would inherit the farm near Northallerton.

Dr Gill said she was happy and "about to burst into tears" after a judge ruled she should inherit the estate.

The RSPCA said it was "very surprised" and "disappointed" and would appeal.

Speaking outside the High Court hearing in Leeds, Dr Gill said: "It's all been tremendously hard - the waiting was hard, the uncertainty.

"I'm shaking and about to burst into tears. I'm quite happy and very relieved at the same time."


He directed his domineering and bombastic personality to Mrs Gill, utilising her anxiety and fear of his explosive character
Court judgement

Dr Gill, an only child, told the court she had devoted many years to helping out on Potto Carr Farm.

In his judgement Judge James Allen QC said it would be "unconscionable" if she did not inherit the estate.

He found that Dr Gill's mother Joyce had been "coerced" by her husband John into making a will that was contrary to her wishes as she had an "avowed dislike" of the charity.

He said that Mrs Gill had wanted her daughter to inherit the farm but Mr Gill had exerted pressure over his wife to favour the RSPCA.

The judge agreed with expert evidence heard during last year's hearings that Mrs Gill suffered from agoraphobia and severe anxiety.

Judge Allen described Mr Gill as a "bully" and a "domineering" and "determined" man.

RSPCA spokesman Henry Macaulay said the charity was disappointed

The judgement read: "The court is satisfied that having made his decision Mr Gill exerted pressure upon Mrs Gill to make the will, which she did which was contrary to her wishes."

It continued: "He directed his domineering and bombastic personality to Mrs Gill, utilising her anxiety and fear of his explosive character and of the possibility of her losing her support upon which she was so dependent to coerce her into making the will which she did."

'Difficult position'

Previous hearings were told how, after her mother's death in 2006, Dr Gill, from Northallerton, discovered her parents had made wills leaving their 287-acre farm to each other and then to the animal charity when both died.

When Mr Gill died in 1999, aged 82, Dr Gill was left to look after her mother and run the farm.

It was only when her mother died in 2006, also aged 82, that she saw the will, which left everything to the RSPCA.

Dr Gill's solicitor Mark Keenan said they backed her because they believed she had suffered an injustice.

The RSPCA said it planned to appeal against the judgement.

It said in a statement: "Throughout this, the RSPCA has been in an extremely difficult position.

"The will left by Dr Gill's parents was very clear - in one sentence they left their entire estate to the RSPCA, and in the next they said their daughter should receive nothing.

"In that situation the RSPCA cannot just walk away, in fact we are legally obliged to seek the funds under charitable law.

"That said, we are a compassionate organisation, and that's why we've tried to settle this matter amicably before it even came to court. Unfortunately our offers were rejected."

The charity said it had made different offers to settle the case through possible compromises, including an offer of £650,000 plus Dr Gill's costs.

It added the case highlighted the importance of people discussing their intentions with family when making a will.

Anonymous said...

Good work Peter I hope your campaign works !

Anonymous said...

I have a feeling the Law Society is setting a trap here :
http://www.heraldscotland.com/news/crime-courts/concern-as-fewer-lawyers-take-on-civil-legal-aid-work-1.924886

Concern as fewer lawyers take on civil legal aid work

heraldscotland staff
Published on 8 Oct 2009

Fears have been raised about the fall in the number of legal firms undertaking civil legal aid work in Scotland.

Liberal Democrat justice spokesman Robert Brown voiced concerns that this could lead to a lack of choice when people were looking for a lawyer for this type of work.

He spoke out as MSPs at Holyrood are to debate the biggest review of the civil justice system in modern times.

Mr Brown said that over the last five years the number of solicitors firms which had submitted applications for civil legal aid had dropped by 12%.

He added: "I am worried about the apparent reduction in choice, across Scotland, for people who need to access civil legal assistance.

"I am concerned that many people across Scotland may be struggling to access a solicitor on pressing personal problems."

And he said: "The Scottish Government must take action to make sure that there are enough solicitors willing to take on civil legal aid work."

Mr Brown voiced his concerns ahead of a Scottish Parliament debate on Lord Gill's review of the civil justice system.

Last week Scotland's second most senior judge proposed a major expansion of the role of the sheriff court in the civil justice system, suggesting cases worth up to £150,000 should be dealt with at this level, freeing up the Court of Session to deal solely with the biggest cases.

Lord Gill also proposed that all minor civil litigation should be transferred to a "third judicial level" within the sheriff court, to be administered by a new class of judicial officers known as district judges.

And he further suggested a specialist personal injury court, based at Edinburgh Sheriff Court and having jurisdiction throughout Scotland, should be set up.

Lord Gill had been appointed to examine the civil justice system in 2007.

When he announced the details of his review he claimed that civil justice as it stands in Scotland is "failing".

He stated: "It is failing to deliver justice to the citizen expeditiously, economically or efficiently.

"Our structures and procedures are wholly unsuited to modern conditions."

Anonymous said...

Clearly forces are at work to deny you this petition Mr Cherbi.
I feel Mr Don's suggestions will only result in yet more delays which will benefit the legal profession.

Anonymous said...

I think Kenny is really afraid of Hamilton .. if both argued MacAskill would LOSE BIG TIME

Anonymous said...

I reported my solicitor to the Police because he stole my money and they said go to the Law Society its a civil matter.

Isnt that disgusting ? Since when is theft not a criminal offence ?

Anonymous said...

I'm not quite sure about the reference to the Land Court or if it would have much bearing on the Civil Courts but a McKenzie Friend should be allowed to happen.

Anonymous said...

9:57pm

Funny how stories now pop up about lawyers walking away from legal aid when McKenzie Friends are being raised in the parliament.

Maybe the legal aid should go to McKenzie Friends instead of just the lawyers ? Now if someone suggested that I bet they would fight for it!

Anonymous said...

Looking forward to reading Hamilton's reply which should be along the lines of "well errm possibly maybe I will have to think about it and get back to you sometime in the next 100 years"

Anonymous said...

http://www.sundaypost.com/margo.htm

The real political work is light years from frock talk

THE big political story of the week centred on the battle of the conferences.

Politics reporters tried to whip up interest in David Cameron’s speech, but all of us who despair about dumbed-down politics knew it was Samantha’s polka dot (M&S £65) in fashionable grey that won the frock battle, in what may be the beginning of the end of Sarah Brown as a fashion statement.

Meantime, in the real world, the Petitions Committee of the Scottish Parliament carried on regardless, with not a polka dot or pair of Jimmy Choo shoes in sight.

For the record, chairman Frank McAveetey was nicely turned out in a suit and tie and MSPs were appropriately dressed for the occasion.

Myself, Sarah Boyack from Central Edinburgh, Mike Pringle from Edinburgh South and Sandra White from Glasgow all attended, although none of us is a member of the Petitions Committee.

Stag parties

As city MSPs we wanted to support petitions concerning the detrimental effect HMOs (Houses in Multiple Occupation) can have on the lives of people living in tenements, for example, and the newer nuisance of flats and houses rented for a few days by stag and hen parties. Partying can be round the clock.

Holyrood’s Petitions Committee is one of the best bits of our new system of governance. Although MSPs had raised the matter with local councils, police and government ministers, the petitions probably made the point better.

I like the petitions route to law-making because there’s no spin and no party-political advantage to be gained it represents the people playing a proper part in their parliament.

The first step to tighten the laws governing HMOs was taken months ago when the petitioners came to the committee and argued their case.

Frank, the chairman, makes sure they’re not overawed and committee members don’t usually base their questioning techniques on those perfected by the Spanish Inquisition. Any MSP may attend the evidence-taking, public part of the meeting. I’ve attended quite a few to let the committee know why I support my constituents.

Once everyone has said his or her piece, and few people complain of feeling rushed or pressurised, supporting MSPs leave the committee to decide, in private if necessary, on how the petitions will be progressed.

Petitions

Usually, as happened with the petitions on troublesome house lets, the committee will seek the views of a good cross-section of the community including the organisations, council inspectors, health boards, police. etc., who are responsible for implementing and monitoring public policies.

The committee then reconsiders the petition alongside the comments, and perhaps counterpoints to the argument of the petitioner. It’s at this stage MSPs can make a difference to the committee’s decision on whether to continue the petition or close it. Sometimes a well-briefed MSP can persuade the committee to keep the petition open, because he or she really thinks the petitioners have a good case that maybe only needs a little more time.

I was certainly well briefed in the arguments for the other petition in which I had an interest this week.

Stewart Mackenzie presented his “MacKenzie’s Friends” petition six months ago. It proposes that people who represent themselves in court without a lawyer may have a friend sitting beside them to hand them evidence, whisper brief advice, etc.

The committee approached professionals in different branches of the legal system — advocates, police, judges and Citizens Advice, Money Advice and so on for their opinions.

When PE1247 came back to the committee after consultation I was there in support. I’m happy to report the committee agreed to commend the idea to the Scottish Government.

That’s what I call a good piece of political work, light years away from frock talk.

Anonymous said...

Good work and happy to see all these politicians taking note of your ideas.

Anonymous said...

Impressive blog but instead of Holyrood asking Lord Hamilton .. they should be ordering Lord Hamilton to make the case for a McKenzie Friend.

Who did I elect ? My MSP. Who did I not elect ? Lord Hamilton.
Do I want access to justice ? YES. Whose job is it to provide that ? Politicians and its for the judges to carry out the laws the politicians make on our wishes.NO MESSING!

Anonymous said...

How come BBC etc haven't taken this issue up or are they too afraid to answer the question why for 40 years before the SNP came in the issue was never even discussed ?????

Anonymous said...

We have McKenzie Friends in Canada and I don't think it took anywhere near the fuss you are having in Scotland to get it !

I'm sure you will be interested to learn how its done here in BC : http://www.clasbc.net/publications/stream.php?Filename=Bring+a+Friend+to+Court+Guide.pdf&ID=8

Best wishes !

Anonymous said...

6:53pm

Next time get your facts straight.Not even the SNP "discussed" McKenzie Friends for 40 years before Peter started writing about it as you can see from his blog.I also saw it first here before any newspaper dared to break the issue which begs an answer to the question - just who controls the press these days ?

Peter Cherbi said...

Thanks for all your comments & emails on this article.

I'm sure at some stage, Scotland's courts will gain the McKenzie Friend facility, however I am equally sure the Law Society and some within the judiciary will string out the debate on how or if McKenzie Friends in Scotland should be implemented.

For instance, I am sure the judiciary will not take kindly to McKenzie Friends becoming a Human Right - as they most certainly are in England & Wales. Clearly for now, Lord Hamilton and his colleagues, along with Mr MacAskill and the Law Society would prefer the McKenzie Friend facility to be at the discretion of the court .. which in my view is incompatible with respect to a person's right of access to justice.

Why Scots should be treated less equally than the rest of the UK population when it comes to access to justice, just because the legal profession prefer the public to use a lawyer, is not fair to the individual.

Anonymous said...

Thank you very much to the person at 10:11 who posted the Canadian link.
I downloaded this document and now I understand a lot about the McKenzie Friend thanks to you and Peter for all this good work.

Anonymous said...

Rather it appears the driving force behind objections from the Scottish legal establishment to the introduction of McKenzie Friends, are solely based on the fact solicitors will lose fees if the public decide to take a McKenzie Friend along with them to court, instead of a costly 20,000 plus solicitor & legal team who may very well end up ruining their case as the statistics seem to indicate in Scotland's currently poorly served legal services market.

CORRECT PETER, AND THE CLIENT WILL HAVE THE ADVANTAGE OF KNOWING THEY WILL NOT HAVE TO DEAL WITH THE INFAMOUS LAW SOCIETY OF SCOTLAND, WHEN THEIR LAWYER SELLS THEM DOWN THE RIVER.

I CANNOT SEE HOW THE SCOTTISH LEGAL ESTABLISHMENT CAN WIN ON THIS ISSUE, THEY ARE FIGHTING A LOSING BATTLE IN RESISTING MCKENZIE FRIENDS, BY DEMONSTRATING HOW PREJUDICED THEY ARE AGAINST THE SCOTTISH LEGAL CONSUMER.

Anonymous said...

Margo MacDonald also reminded the Petitions Committee that having a McKenzie Friend in England & Wales was a right, and not something which should be under the sole approval of a Sheriff or the court, stating : "Lord Gill I think suggests it should be up to the sheriff to decide whether or not a McKenzie Friend would be allowed to be alongside the litigant whereas in England I think they have a right to be there"
===================================
Exactly, as Margo states Lord Gill said it was for a sheriff to decide on this issue. No, no, no, a member of the legal profession who is a member of the Law Society has a conflict of interest here. Sheriff's pay into the same insurance arrangements as lawyers, and will also want to protect the professions ability to earn fees. McKenzie friends mean lawyers won't be needed for less complex cases, so law firms will earn less. In my view the choice of a McKenzie friend is a right, not something to be decided by this self regulating profession.

Scotland will follow other countries here, the legal establishment will not get their way, because we do not trust lawyers.