Lord Hamilton accused of ‘being deluded’ over McKenzie Friends in Scotland as judge's attack on Holyrood petition contradicts courtroom reality

Scotland's Lord President of the courts, Lord Hamilton. SCOTLAND'S CHIEF JUDGE LORD HAMILTON has been accused of "being deluded" over the use of McKenzie Friends in English Courts, and providing “a gravely mistaken account” to the Scottish Parliament's Petitions Committee of the attitudes of Scotland's Courts to unrepresented party litigants who have made requests for assistance in the form of a McKenzie Friend, only to be refused consistently by Sheriffs and even courtroom colleagues of the Lord President himself for a staggering FORTY YEARS while courts in England & Wales have without much trouble allowed McKenzie Friends to operate successfully & diligently over the same four decade period.

Lord Hamilton attacked the petitioner, also challenged the introduction of McKenzie Friends in Scotland. In a bizarre outburst by the Lord President over the use of McKenzie Friends in England & Wales, Lord Hamilton alleged that McKenzie friends sat behind litigants in English courts (rather than in reality, beside them), and then proceeded to attack the member of the public who had raised the petition at the Scottish Parliament, a Mr Stewart MacKenzie, accusing him of failing to understand that Scottish courts had always allowed the use of McKenzie Friends. Amid all this, the Lord President failed to back up his claims with written evidence. Lord Hamilton's letter to the Petitions Committee stated : "As you will be aware, this expression, which owes its origin to English procedure, can be used in two senses : in its original sense it referred to an individual assisting a party litigant by sitting he hind him or her in court and assisting that litigant by making notes, helping with case papers or quietly giving advice on the conduct of the case, as well as providing moral support in court (Civil Courts Review, Chapter 11, para 42).

The Lord President's claim that a McKenzie Friend sat behind the individual they had been called to assist in English courts was quickly rubbished by several institutions in England & Wales.

A group which provides McKenzie Friends to unrepresented parents in need of legal assistance commented : "If Lord Hamilton thinks that a McKenzie Friend sits behind a party litigant he should make the journey south and attend cases where McKenzie Friends are being used successfully in England & Wales. He would plainly see the McKenzie Friend sits next to the litigant and assists them accordingly."

“We have provided qualified individuals acting as McKenzie Friends in hundreds of cases and not once have any been asked to sit behind the person they were there to assist, nor would we add, have any of our McKenzie Friends ever been asked to leave a courtroom.”

An English barrister, asked for reaction on Lord Hamilton's claims, branded the Lord President's letter fantastic & ludicrous. He said : "The Lord President should stick to writing about things he knows about as he plainly does not know about the workings of the English courts system. Lord Hamilton is deluded if he thinks McKenzie Friends sit behind the very litigants they are there to assist."

He continued : "If you think about it for one minute, what judge would allow a litigant to constantly turn around and ask questions, take advice, or be passed notes & papers throughout a hearing ? Having a McKenzie Friend sit anywhere other than next to the person they are there to assist is quite frankly, barmy."

Lord Hamilton then went onto personally attack the petitioner, Mr Stewart Mackenzie's understanding of how Scottish courts deal with McKenzie Friends requests, claiming there was "never any difficulty with such assistance being provided". Lord Hamilton's letter went onto state : "Contrary to the apparent understanding of the petitioner in this petition, the Scottish Courts - certainly the Court of Session, and, I understand, also the Sheriff Courts - have never had any difficulty with such assistance being provided; it is the existing practice of the Court to permit it; there is no need for its "introduction". It is, of course subject to the control of the presiding judge, who, if the facility were being abused, would be entitled to stop it."

However, Lord Hamilton's criticisms of the petitioner, and claims that Scottish Courts allowed the use of McKenzie Friends, were not backed up by a single shred of evidence provided by the Lord President in his letter to the Petitions Committee, and his assertions that courts had no difficulty with the use of McKenzie Friends were even rebuffed by insiders at the Scottish Courts Service, who admitted McKenzie Friends requests made by unrepresented litigants in Scottish courts WERE ROUTINELY REFUSED over the past 40 years to the present day.

Lord Hamilton’s colleague Lord Woolman refused McKenzie Friend days after Lord Gill’s recommendation to allow. To make matters worse for the Lord President's claims to Parliament, a spokeswoman for the Scottish Courts Service admitted when questioned that a second request by an unrepresented party litigant for a McKenzie Friend in a long running damages action being heard in the Court of Session itself, was refused by Lord Hamilton's colleague, Lord Woolman, the day after the Lord Justice Clerk, Lord Gill announced his Civil Courts Review, stating that McKenzie Friends should be introduced to Scottish Courts.

A spokeswoman for the Scottish Courts Service confirmed that : "The request for a McKenzie friend formed one part of a six part motion and was refused. There was no judgment issued nor reason recorded, only the decision."

You can read my earlier report on Lord Gill’s Civil Courts Review, which recommended the implementation of McKenzie Friends in Scotland, here : Scots Law 'shake up' as Lord Gill’s Civil Courts Review supports McKenzie Friends, Class Actions & wider access to justice for all

A senior solicitor from a Glasgow law firm confirmed today that McMenzie Friend requests were usually refused in Scotland, and that life was made as difficult as possible for those making the request.

He said : "It doesn't take much to realise Scottish Courts do not want McKenzie Friends showing up to assist party litigants. Lord Hamilton's claims to the contrary are with respect, aloof from the reality those of us who work at the sharp end in the legal system know to be the case."

He continued : "Anyway, if the Lord President is so convinced Scotland's courts are happy to allow the use of McKenzie Friends, why didn't he provide any details of such instances to the Parliament in his letter ? I think that omission speaks for itself because there are no such examples to give."

Lord Hamilton ‘fears’ English style reforms to Scotland’s Courts. Lord Hamilton continued in his letter to the Petitions Committee, claiming that if similar legislation which has successfully served the rest of the UK for nearly two decades, were introduced in Scotland, it would allow individuals to address the court on behalf of litigants, rather than simply be their McKenzie Friend. Lord Hamilton continued : "In England and Wales matters have, as the Civil Courts Review notices, op cit. been taken further. Section 27(2)(c) of the Courts and Legal Services Act 1990 envisages that a court in England or Wales may - perhaps in furtherance of a pre-existing common law facility - grant a right of audience in relation to particular proceedings . This may be done on a discretionary basis (see izzo v Philip Ross & Co (a firm), [2002] BPIR 310, where it was described by Neiberger J as "an indulgence"). That, if authorised in Scotland, would allow an individual granted such rights to address the court on behalf of the lay litigant. (There are conflicting views in the Outer House as to whether the court has already at common law such a power - see Civil Courts Review, Chapter 11, para 43. There is no Inner House authority in favour of the court having such a power). The Judges of the Court of Session would have no objection in principle to such a discretionary power being available - though the discretion would require to be carefully exercised to avoid disruption to court business and injustice to other parties.”

A retired Sheriff today expressed his dissatisfaction with the tone of Lord Hamilton’s statements on the McKenzie Friends issue, particularly the idea that a McKenzie Friend might, in the words of Lord Hamilton, be asked to sit behind a party litigant in a courtroom.

He said : “While I do not personally recall having any such request made to me for a McKenzie Friend during my time on the bench, I would have found it contrary to the good running of the court and the interests of justice if a party litigant were to be forced to keep turning around to seek consultation with their McKenzie Friend assistant.”

He continued : “I fear that fighting the introduction of something which the Courts in England & Wales appear to have lived with for so long is not in the public interest and I would hope the Parliament and Lord Hamilton can accept the recent recommendations of the Lord Justice Clerk, Lord Gill, to introduce the McKenzie Friend to Scotland as expediently as possible.”

Finally, Lord Hamilton in his letter challenging the "introduction" of McKenzie Friends in Scotland, referred to the recent limited expansion of rights of audience in Scotland, where Section 25 of the Law Reform Miscellaneous Provision) (Scotland) Act 1990, which only came into force in 2007, after 17 years of campaigning for its introduction amid bitter delaying tactics from Scotland's legal establishment, fearing competition from non-lawyers and non Law Society members. Lord Hamilton again failed to mention in his letter to the Scottish Parliament that such ‘fresh’ rights of audience as he referred to, were conferred in a very limited and restricted manner on the Association of Commercial Attorneys, who were forced to agree a practicing certificate limiting the ACA solely to Construction Law cases …

Lord Hamilton concluded : "Fresh rights of audience in Scotland have previously been conferred by primary legislation (see Law Reform Miscellaneous Provision) (Scotland) Act 1990 section 24 ("solicitor advocates") and section 25 )members of professional and other bodies. The judges are of the view that, if an equivalent to section 27(2)(c) of the Courts and Legal Services Act 1990 (or its common law source) is to be recognised in Scotland, this should be done by primary legislation. If that were done, it may be that the exercise of the discretion could be regulated by the rules of court."

If there’s one thing for sure in all of this, it is that “discretion of court” certainly on the issue of McKenzie Friends, cannot be allowed to continue to strangle the rights of unrepresented party litigants of access to justice in Scotland’s courts.

The facility of McKenzie Friends has operated successfully in England & Wales for 40 years, and in many countries around the world, who all mostly treat the request for use of a McKenzie Friend as a Human Rights issue. What we have seen is that in the 40 years since McKenzie Friends have existed in England & Wales, the Scottish Courts have consistently refused to allow litigants to use a McKenzie Friend, demonstrating well enough that Scotland’s courts cannot be trusted on applying discretion in use of McKenzie Friends.

Given 40 long years have rolled by without almost a single McKenzie Friend in Scotland, it now falls to the Scottish Parliament to speak for the people of Scotland, and ensure that unrepresented individuals who cannot access justice simply because they cannot obtain the services of a solicitor, can, within a certain legislative framework which must be respected by the judiciary, apply for the use of a McKenzie Friend to assist their access to justice in Scotland’s courts, when so needed.

You can read my previous articles on the battle to bring McKenzie Friends to Scotland’s courts, here : McKenzie Friends for Scotland and please support the Scottish Parliament petition to bring McKenzie Friends to Scotland’s courts, which you can view here : Petition 1247 : McKenzie Friends for Scotland