Tuesday, October 13, 2009

Holyrood debate reveals civil justice reforms & McKenzie Friends may be a long way off as Scottish Ministers stumble over Lord Gill review proposals

Debating chamberScottish Parliament debated Lord Gill’s Civil Courts Review. Last Thursday's Scottish Parliamentary debate on the Civil Courts Review recommendations made by Scotland's Lord Justice Clerk, Lord Gill has left most onlookers and legal insiders with a worry that many of the reforms proposed in the two year review on Scotland's Civil Justice system, including the implementation of McKenzie Friends & Class Actions, will suffer long delays and in some cases, may almost certainly never be implemented in ways which would help ordinary Scots gain significant improvements in using Scotland's "Victorian" justice system.

MacAskill tight lippedJustice Secretary Kenny MacAskill spoke of Lord Gill’s criticisms of Scotland’s Civil Justice System. The tone of the debate, opened by Justice Secretary Kenny MacAskill, began on a 'positive’ note, where high hopes for improvements to Scotland's Civil Justice system were aired by Mr MacAskill, along with the usual compliments for the legal system as it currently stands (in failure). Mr MacAskill said : “Scots law and the Scottish courts have served us well in civil matters for many years but, last Wednesday, the Lord Justice Clerk, Lord Gill, presented me with the "Report of the Scottish Civil Courts Review", which is a hard-hitting report and the first system-wide review in modern times.”

Mr MacAskill went on to say : “In his opening paragraphs Lord Gill pulls no punches. He says: "The basic structure of civil jurisdictions in the Scottish courts remains much as it was in the late nineteenth century".He continues:"changes in the social and economic life of Scotland ... have left us with a structure of civil justice that is seriously failing the nation. Reform is long overdue."

“Those conclusions are unavoidable. Our civil courts now operate in a rights-based, property-owning, consumer-oriented, insurance-reliant society of a sort that would have been unrecognisable a century ago. A reliance on ad hoc reforms has delivered a system of civil justice that is unfit for today's purposes. Lord Gill states: "The practitioners of 100 years ago would have little difficulty in picking up the threads of today's courts. The severe summary is that the structure is "seriously failing the nation."

Scotland’s Justice Secretary Kenny MacAskill opens Holyrood debate on Civil Courts Review :

margo_macdonaldMargo MacDonald MSP asked Kenny MacAskill when justice reforms would begin. Early intervention from independent MSP Margo MacDonald on the question of which areas had been identified by the Justice Secretary for a start, along with comments from the Liberal Democrat Justice Spokesman Robert Brown on points made by Lord Gill that his report ‘was not to be cherry picked and should be dealt with as a whole’, appeared to leave Mr MacAskill grasping for explanations as to what could and could not be done by the current Scottish Government.

Further hints at delays to Lord Gill’s proposals were compounded by questions from Scottish Labour MSP David Whitton, on the subject of McKenzie Friends, which also left Mr MacAskill struggling for an immediate solution to the forty year old McKenzie Friend 'Scottish problem' , the blame of which sits squarely with the Courts and Scotland’s legal establishment.

david_whittonStrathkelvin and Bearsden MSP David Whitton asked for introduction of McKenzie Friends in Scotland. David Whitton intervened early on in Mr MacAskill’s opening speech, asking asked the Justice Secretary about the issue of McKenzie Friends in Scotland. Mr Whitton said : “Is one of the issues on which the cabinet secretary thinks we can all reach agreement the introduction of the McKenzie friend process?”

MacAskill tight lipped Justice Secretary MacAskill replied with a less than immediately hopeful statement : “I am more than happy to consider it. Lord Gill commented on that process, as did those involved in providing support through citizens advice bureaux and others. I am more than happy to meet Mr Whitton or his front-bench colleagues to discuss it because we are genuinely open to ideas. We do not insist on any formula. As I said, if we can agree on changes that are within our control, we will seek to do so. If changes are within the domain of others we will encourage them to act, if that is Parliament's view. Other matters will require to await the outcome of an election and, presumably, the availability of legislative time. The shape of reform will require endorsement and, in some cases, enactment by this Parliament. There will be those in the chamber and beyond with particular interests in the course of reform, whether that involves McKenzie friends or other ideas. They will want to ensure that their interests are protected, be they of the cause or constituency type. That is to be expected and welcomed”

Strathkelvin and Bearsden MSP David Whitton spoke further on the issue of McKenzie Friends for Scotland :

David Whitton MSP said during his speech : “My colleague Cathie Craigie and several other members touched on the need for the introduction of McKenzie friends in Scottish courts. The cabinet secretary knows about my interest in third-party rights of representation. Indeed, only a couple of months ago, the Association of Commercial Attorneys finally earned the right for its members to appear in court, but only after a lengthy process, which at times seemed to involve an obstructive approach from the Scottish legal establishment. It is to be hoped that the recommendation on the introduction of McKenzie friends does not suffer similar delays. That is why I welcome the cabinet secretary's earlier remarks in response to my intervention.”

He continued : “We must make expeditious progress on Lord Gill's enlightened recommendation on McKenzie friends. The first thing that can be done is for the courts to grant McKenzie friend rights with immediate effect. There is no need for legislation from the Parliament, as it is within the powers of the courts to grant those rights. That would demonstrate the intent that things are going to change. The public want that change, Lord Gill has recommended it, the consumer associations support it, and it is an equitable and compassionate remedy for some of the access-to-justice restrictions in Scotland.

Mr Whitton’s references to the Association of Commercial Attorneys application for third party rights of representation refers to a long battle by the ACA’s Chairman, Mr Bill Alexander, seeking rights of audience under Sections 25-29 of the Law Reform (Miscellaneous Provisions) Scotland Act 1990, which I have reported on previously, here : Association of Commercial Attorneys Rights of Audience in Scotland

The outcome for the ACA was less than fair, due to the fact they were given a heavily restrictive practicing certificate for construction law only, with their application apparently being fought & lobbied against by the legal establishment at every stage. The ACA’s battle to gain rights of audience may also indicate a long struggle ahead on the issue of McKenzie Friends and other access to justice reforms proposed by Lord Gill.

fergus_ewingFergus Ewing caught out on McKenzie Friends issue. While the debate began on a somewhat positive note, the debate certainly ended on a significant stumble by the Communities Safety Minister Fergus Ewing over the question of McKenzie Friends, who indicated in his replies to questions from David Whitton MSP that a quick implementation of even the basic proposals in Lord Gill’s Civil Courts Review such as allowing McKenzie Friends in Scotland’s courts, was not going to be ‘all that quick’

Community Safety Minister Fergus Ewing stumbles over McKenzie Friends for Scotland after 40 years of existence in England & Wales.

david_whittonDavid Whitton intervened once more on the McKenzie Friends question. During the debate’s closing speech by Community Safety Minister Fergus Ewing, Strathkelvin and Bearsden MSP David Whitton again raised the subject of McKenzie Friends and their sooner rather than later implementation in Scotland. Mr Whitton said : “I bring the minister back to my comments about McKenzie friends. He mentioned that there was wide consultation on their use and varying reports about their effectiveness, but I am sure that he acknowledges that Lord Gill recommends firmly that they should be introduced. Indeed, they already work in jurisdictions south of the border, so I do not understand why we need to delay too long before we implement that recommendation.”

fergus_ewingFergus Ewing replied ‘its not an easy matter to be a McKenzie Friend’. Community Safety Minister Fergus Ewing replied with a less than clear cut answer, leaving many to suspect the battle to implement McKenzie Friends in Scotland is far from over. Mr Ewing said : “David Whitton is right that the recommendation is that McKenzie friends should play a role in Court of Session actions. However, my understanding—my recollection of reading that part of the report—is that there is the caveat that it should be at the discretion of the judge who is handling the case to ensure that McKenzie friends are used appropriately for each case. It is not an easy matter to be a McKenzie friend and, particularly if the case is complex, there could be issues with the appropriateness of using one. I think that Lord Gill also states that, in family actions, it may not always be appropriate for a family member to act as a McKenzie friend because of the potential conflicts of interest.”

By clicking the following You Tube links, you can watch the reaction from Scotland’s political parties and several MSPs to Lord Gill’s recommendations, which for the main offered a broad approval of Lord Gill’s report and hopes that many of the issues raised in the two year appraisal of Scotland’s Civil Justice system can be implemented. The test of course will be whether the Civil Justice reforms proposed in the review will be implemented, and how long implementation will take …

Civil Courts Review debate : Scottish Conservative Justice spokesman Bill Aitken MSP

Civil Courts Review debate : Scottish Labour Justice spokesman Richard Baker MSP

Civil Courts Review debate : Scottish Liberal Democrats Justice spokesman Robert Brown MSP

Civil Courts Review debate : Cathy Jamieson MSP

Civil Courts Review debate : Shirley Anne Somerville MSP speaks on Class Action reforms

Civil Courts Review debate : Nigel Don MSP

On the whole I would say the debate was positive, albeit there are obvious indicators the implementation of Lord Gill’s recommendations will take time, and will be met with obvious & stiff resistance from the legal establishment. Several solicitors and legal insiders I have spoken to since the debate point to many uncertainties over Lord Gill’s proposals, resistance from the legal establishment over changes that many within its ranks do not want, and the inevitable arm twisting of politicians by the likes of the Law Society of Scotland, who although have welcomed Lord Gill’s report, are actually fuming over many of the proposals to give the public greater access to justice, and the chance to bypass Scotland’s hugely expensive solicitors to do it.

I honestly feel that as far as McKenzie Friends go, there will have to be some kind of legislation to ensure that having a McKenzie Friend is a Human Right, and not something at the whim or discretion of the court. The court has after all, kept out McKenzie Friends from Scotland for some forty years, and both the governing bodies of Scotland’s legal profession – the Law Society of Scotland and the Faculty of Advocates, do not even recognise the fact that McKenzie Friends are treated as Human Rights issue in England & Wales, and in many jurisdictions around the world.

If we are to have certainty over the McKenzie Friends question, and many other recommendations of Lord Gill, I foresee the legislative route must be used to force the courts to ensure access to justice for all, rather than access to justice only for those the court feels should have it.

The legal establishment and the courts, will again no doubt argue that we are special in Scotland, and have a peculiarly special legal services market which may be damaged by some of Lord Gill’s proposals including McKenzie Friends. However, the truth is, we are only special in Scotland because the legal establishment actively denies access to justice to those it does not want to achieve access to justice.


Anonymous said...

delay delay delay !!

Anonymous said...

The debate was rubbish but your conclusion is spot on.I mean why trust the court to do something it has refused to do for 40 years ??? its madness

keep up the good work Peter !

Anonymous said...

Looks like its more of the same from Fergus & Co.

Maybe Scotland will get McKenzie Friends in 100 years or so !

Anonymous said...

Thief !


Salmond to repay £700 in expenses
Alex Salmond
Mr Salmond gave up his rented flat in London in 2007

Scottish First Minister Alex Salmond is to repay more than £700 following the independent audit of MPs' expenses.

Mr Salmond had claimed £710.88 for removal costs when when he gave up his rented London flat in 2007.

The SNP leader has also been asked to supply further information on £2,610 claimed for hotel stays.

The party said six of its seven MPs either had to repay money or had been asked to give further details about their claims.

Sofabed claim

Perth and Perthshire North MP Pete Wishart has been asked to repay £1,632 over a duplicate claim for flat rental and a utility bill.

Angus Robertson, MP for Moray, is repaying £1,217 for a sofabed and DVD recorder and is providing rental and mortgage statements as requested.

Dundee East MP Stewart Hosie is repaying £379 for hotel costs claimed in February 2009 when his flat flooded and was uninhabitable. The MP should have reclaimed this cost from his insurance, the SNP said.

And Western Isles MP Angus MacNeil is repaying a partial council tax bill of £133 for 2007/08.

Mr MacNeil is also asking for clarification from the auditor, Sir Thomas Legg, over what he called "unavoidable" hotel stays in Glasgow. He said these were incurred en-route to his island constituency and had previously been agreed with Commons authorities.

An SNP spokesperson said: "Our view has always been that once you call in a referee you abide by the decision, and where Sir Thomas has requested further information that will be provided.

"The priority now should be to put the Westminster expenses system on the same solid, open and transparent footing as that of the Scottish Parliament."

Anonymous said...

more thieves !


MSPs on £40k trip Down Under

Published Date: 13 October 2009

A DELEGATION of MSPs have begun a £40,000 two-week visit to Australia and New Zealand.

Their itinerary began yesterday in Perth with a visit to the Parliament of Western Australia and will end on Friday week, with a visit to New Zealand parliamentarians in Dunedin.

In between they will visit Adelaide, Melbourne, Canberra, Sydney and Wellington.

The cross-party delegation has four MSPs – the Conservatives' Ted Brocklebank , the Liberal Democrats' Ross Finnie, Labour's Rhoda Grant and the SNP's Sandra White. The delegation is being led by the Presiding Officer Alex Fergusson.

Officials said the visit followed an invitation from the Australian and New Zealand parliaments.

The MSPs would hold a number of meetings "to promote the work of the Scottish Parliament in its first ten years, as well as looking to learn from counterparts from more established parliaments."

Mr Fergusson said: "It is a great honour that the Australian and New Zealand parliaments have invited us to share our experiences.

"Like us, they believe opportunities to learn from other parliamentary institutions are incredibly valuable.

"Our delegation will represent the Scottish Parliament and promote our experience in new ways of working, such as our festival of politics and our public petitions committee to other parliamentarians from five different legislatures."

Mr Fergusson added: "Equally, learning from other parliaments is important.

"We intend to listen, learn and return with ideas and proposals on a variety of subjects including promoting minority languages and engaging with young people."

Anonymous said...

Hats off to Margo and Whitton but it looks to me like the rest are not delivering for the rest of us on justice.

Also why did Ewing close the debate ?

Surely MacAskill should have done the closing too ?

Anonymous said...

Marvellous the way you put it all together Peter.I think you will get your way on the McKenzie Friend issue and lots more with all that political support!

Good luck!

Anonymous said...

Just watched all the clips and read your report.
MacAskill and Fergus Ewing appear to be playing 'Good Cop Bad Cop' but as you pointed out very well David Whitton tripped up Ewing beautifully on McKenzie Friend.

Anonymous said...

Fergus' closing argument reminds me of this - http://www.youtube.com/watch?v=w7CclVneVpw

Anonymous said...

It's long past past the time when politicians - of all parties - start living up to their name and begin representing the best interests of those who elected them.

Further failure now will quite rightly see them damned to a future on the sidelines.

Anonymous said...

I'm inclined to agree with the second comment - not much of a debate and MacAskill is truly appalling in that clip.

Little doubt Scotland has a battle on its hands to get a proper justice system.

Anonymous said...

Splendid and balanced summary as ever - we all owe you a debt of gratitude.

Anonymous said...

Good to see plenty political support for what you've been writing about for years.Proves you correct all along I'd say!

Anonymous said...

Anonymous said...

Fergus' closing argument reminds me of this - http://www.youtube.com/watch?v=w7CclVneVpw

8:57 PM

LOL Yes that's Fergus !

Anonymous said...

unintended consequence :

Scottish civil justice review "welcome" news for insurers

Lord Gill's long-awaited review outlines plans to streamline court system

The first full-scale review of the civil justice system in Scotland has now been published and spells good news for insurers, according to law firm Brodies.

Similar to the review conducted in England and Wales by Lord Woolf, Lord Gill has focused on the cost of litigation and the issue of needless delays in the court process.

Brodies - a long-term supporter of modernising the litigation landscape in Scotland - said Lord Gill’s emphasis on the need for efficiency, specialisation, a more coherent court structure and the increased use of communications technology, presents much that is welcome for insurers.

Cameron McNaught, partner in Brodies' insurance team commented: “Lord Gill’s recommendations encompass both the structure of the courts and the procedures within them. The overall aim of the recommendations is to achieve a swifter resolution of disputes and to have cases dealt with in a way that is proportionate to the nature of the dispute - in terms of value, legal complexity and importance.

“Insurers used to handling cases south of the border will find many of the proposals familiar. The Scottish Civil Courts Review draws heavily on the reforms which followed the Woolf Review – with the hindsight of seeing those reforms in action over the last 10 years.”

Some of the highlights are:

• A dramatic restriction in the level of case which can be brought in the Scotland’s high court, the Court of Session, with the court only handling cases with a value of £150 000 or more. At present it can deal with any claim above £5000.

• Cases below £150 000 to be handled by the Sheriff Court - the Scottish county court).

• A new (third) level of court to be introduced to deal with small claims below £5000, staffed by a new breed of judge, the district judge, already long established in England and Wales.

• A new centralised court specialising in personal injury based at Edinburgh Sheriff Court (with jurisdiction throughout Scotland) and staffed by specialist judges.

• A new appeals process which restricts access to the higher Courts.

• Active case management. • A new Civil Justice Council to monitor and develop the system.

While there are general recommendations about costs, the report proposes that the new Civil Justice Council should look at that issue in greater detail. In the meantime Lord Gill has suggested that the Scottish government should appoint a working party to start reviewing costs and fee arrangements.

Mr McNaught added: "It seems inevitable that such a group will look to the work being done by Lord Justice Jackson in England. To make these proposals - if accepted - a reality will require new government funding, and it remains to be seen in the current climate whether such funding will be available.

"It is important that costs are addressed alongside the implementation of any significant reform."

Anonymous said...

Some information about Fergus Ewing

Member for:
Inverness East, Nairn and Lochaber

Scottish National Party

Date of Birth:
23 September 1957

Place of Birth:
Glasgow, Scotland

Religious Affiliation:
Church of Scotland

Trade Union/Professional Membership:
Member, Law Society of Scotland

Loretto School, Edinburgh

Glasgow University

Career History:
Self-employed Solicitor, Small Business Manager

Partner Ewing & Co

Solicitor Leslie Wolfson & Co, Glasgow

Apprentice Solicitor

So I wont be expecting him to be too sympathetic to the public on justice issues and the McKenzie Friend.

Anonymous said...

More SNP broken promises by the sounds of it.

Also the comment at 8.57pm is very good !

Anonymous said...

Had a look through the clips and see what you mean.I wonder what Lord Gill thinks of it all now his report is being pulled apart and put on the back burner by this lot ?

Anonymous said...

Why should McKenzie friends be a long way off if an English court took one hearing to make them happen ?
Why must Scotland lag behind yet again on justice ?

JS Chalmers said...

Shirley Somerville is my msp and I'm happy to see her speak so well about law reform.Her input is a lot better than Mr Ewing and Mr MacAskill combined.

Next time give her higher billing in your reporting!

Anonymous said...

Too much spin in Kenny's opening - you can tell all that follows is BS (as expected)

Anonymous said...

interesting debate if only to spot the ones who dont want reform

Anonymous said...

I suspect all parties will put in a better performance next time round after you having featured their 'shortcomings' !

Good work as always Peter

Anonymous said...

You put the newspapers to shame.

Anonymous said...

some article !

could we be forgiven for thinking most of Lord Gill's report will end up in the trash heap ?

Anonymous said...

"The practitioners of 100 years ago would have little difficulty in picking up the threads of today's courts. The severe summary is that the structure is "seriously failing the nation."
Good afternoon Mr MacAskill, please note the Law Society of Scotland SLCC are failing clients. Where do people go when they are ruined by a lawyer?

Anonymous said...

Peter Cherbi said

"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".
Good afternoon Peter,

I agree with your summary, we need consumer choice and we will not get that if a member of the legal profession is the decision maker on whether a party litigant, can have a McKenzie friend or not.

These people are barking mad, how can they defend themselves on this issue when it is a right south of the border. They will try their usual stall tactics, but they are failing to win the debate and they know it. All the best.

Anonymous said...

I agree.Conclusion is spot on as always Peter and that debate.Well what a shower !

Anonymous said...

Thanks for the profile of Fergus Ewing.I live in Inverness and didn't know he was a lawyer.
-1 vote here

Anonymous said...

I also agree with Mr Cherbi.

Its about time we had reforms of these ancient Scottish court procedures that are only keeping lawyers in profit and thats why the Law Society want to keep everything the way it is just now.

Anonymous said...

My lawyer committed suicide after being found to be stealing from all his clients and still after SIX YEARS the Law society are still not ready to tell us how much money we will get back if anything .
I have been to the Police because there is lots of fraud and they started investigating then the Procurator Fiscal told them to stop so no hope there. I hearad today one of the secretaries who worked at my lawyers office now works at the Sheriff Court for the Fiscal !!
What do I have to do to get this lot thrown in jail ???????

Anonymous said...

Check this out Peter - a LAWYER was caught helping them launder the money !


Police seize £10,000 in Edinburgh money laundering raids

heraldscotland staff

Published on 16 Oct 2009

Police investigating possible money laundering in Edinburgh seized £10,000 in cash during a two-day operation.

Officers also confiscated a shotgun, ammunition, drugs, and documents, and seized assets worth £880,000 under the Proceeds of Crime Act.

Lothian and Borders Police said they searched 14 homes and businesses in Edinburgh and Dalkeith on October 14 and 15.

Detective Chief Inspector Robert Cowper said: “This successful initiative was purely about gathering evidence in relation to money laundering activities.

“In addition to searching private homes, we also searched the business premises of solicitors, mortgage advisors and accountants suspected of having criminal links.

“Serious organised crime groups often use other businesses to legitimise their incomes, and Lothian and Borders Police is intent on deterring them by taking the profit out of their criminal activity.

“Trying to recover the ill-gotten gains of those involved in serious organised crime is one of the strands of our strategy to tackle these groups.

“Money, and the power that comes with it, is what drives them. However they have to make it appear that their money comes from legitimate sources.

“That is where money laundering comes into play, and where we have intelligence we will act to try to recover these assets.”

Anonymous said...


I read something similar in the papers a few weeks ago in Aberdeen - get the cops in if the Law Society are clamming up on you.

Anonymous said...

Salmond thinks he is Ghandi so anyone wanting justice in Scotland has had it now

Anonymous said...

Well it was very obvious from watching your clips the only reason McKenzie Friends and other reforms were mentioned was because Margo MacDonald was there to keep them on their toes.Congrats Margo - you are the only politician worthy of the title.

Anonymous said...

McAskill sorry Mahatma Gandhi is too busy showering compliments on his legal pals for any of that to be believed
His sidekick Ewing is in the same boat and from that profile no wonder MacAskill keeps praising lawyers because many of his party colleagues are lawyers too!

Anonymous said...

Christ a bunch of kids in a debating class could do better !