Friday, July 31, 2009

Scotland's civil courts system is a mess and consumers have little access to justice, reports 'limited' Consumer Focus survey

Consumer Focus ScotlandLong awaited Consumer Focus research points to lack of access to justice in Scotland's civil courts. SIX YEARS after the Scottish Consumer Council began investigating the mess that is Scotland's civil justice system, the SCC’s latest incarnation, Consumer Focus Scotland, has reported to a rather unsurprised audience that Scotland's civil courts are indeed in the mess we all know them to be, and that access to justice in the civil courts is limited at best, descending to 'non-existent' for most Scots who try to pursue civil law issues on their own.

The research, funded by Consumer Focus Scotland, managed by the Scottish Legal Aid Board, and implemented by market research group IPSOS-MORI, which was initially hoped would interview hundreds of people, eventually only took in the views of 35 court users, because the Scottish Court Service, as I reported yesterday, blocked the release of crucial documents on cases to the research team.

You can download & read a copy of the Consumer Focus Scotland research in acrobat .pdf format : HERE

The problem I have with the report is that there are too few numbers involved in the actual survey, and therefore too few experiences studied & reported to back up what should be wide ranging reform proposals we are all expecting to hear from the work of Lord Gill’s civil court review. The Consumer Focus report conclusion does highlight these shortcomings of a lack of interview subjects for the research, but as many pointed out yesterday in my report on the Scottish Court Service blocking the success of the Consumer Focus research, much more could have been done to attract people into the project.

The Report’s conclusion makes reference to a lack of interview subjects, twice : “This report contains the findings of a small scale, exploratory piece of research which has aimed to build on the existing weak evidence base of the experiences of civil court users in Scotland. Because of the difficulties involved in identifying and accessing court users, our eventual sample of litigants (a combination of those who had contacted an in-court advice service and litigants identified through Scottish Legal Aid Board applications data) cannot be said to be typical of the population of unrepresented litigants currently pursuing cases through the courts – in terms of factors relating to demographics, case and litigant type as well as their experiences, attitudes and behaviour.”

and here : “Lastly, because of the narrow range of sample available to us in order to conduct the research, those interviewed had gone through either a small claims or summary cause action. None had experienced ordinary cause procedure, and considering that these cases are likely to be more complicated, with no standard forms available to help unrepresented litigants, there is good reason for ensuring this group is included in future studies.”

Law Society of ScotlandMissing from the report is the fact that for now, consumers access to justice is controlled by the legal services market monopoly enforced by Law Society of Scotland and individual solicitors. The glaring omission in the Consumer Focus research, is the obvious fact that problems with the public’s access to justice in the civil court system can really be explained in one obvious sentence - a lack of access to trustworthy, transparent & accountable legal services & legal representation at a reasonable cost. Access to justice in Scotland, will always be restricted until the element of control the legal profession itself exhibits over the justice system is taken away from them.

A person’s right of access to justice should not be decided by a solicitor on the back of the legal profession’s business for profit model, brutally enforced as a monopoly by the Law Society of Scotland for far too long … a person’s access to justice should be decided by the court after a fair hearing on the individual’s case, with that individual having unrestricted access to the trustworthy, transparent & accountable legal services & legal representation at a reasonable cost which everyone deserves, regardless of wealth or status.

Reforming civil justice and the civil courts is one thing, but any such reforms are meaningless unless the legal services sector itself is reformed, and fully opened up to competition and effective independent regulation, so that people don't need to face the court alone and defend themselves against not only an adversary, but also the less than friendly court environment and also the usual opposing legal counsel who will use every trick in the book to prevent party litigants from gaining a fair hearing in civil court cases.

Now of course, the test comes on how exactly these findings, and indeed the experiences of tens of thousands of other Scots who have used or attempted to use the civil justice system in Scotland, will impact on the forthcoming Civil Courts Review, chaired by Lord Gill, the Lord Justice Clerk. Reform must take place, sooner rather than later - and this time, for the good of the public, not the legal profession.

Here is the Press Release from Consumer Focus Scotland which accompanies the release of the research :

Views and experiences of civil sheriff court users

What’s going to happen to me?

Snapshot of court users points to need for better information and guidance

A study involving people taking and defending civil cases in Scotland’s sheriff courts suggests people too often don’t know what’s going on around them. The snapshot study commissioned by Consumer Focus Scotland and the Scottish Legal Aid Board shows court users can find themselves believing what’s to come is going to be far worse than it turns out to be.

Head of Policy at Consumer Focus Scotland, Sarah O’Neill – herself a solicitor and former in-court adviser – says the research points to an urgent need for better information for the public, and wider access to support services in all courts:

“People who bring their civil cases to court, or defend cases brought against them, who are often representing themselves, told us that it can be worrying and bewildering. While solicitors and some businesses that use the courts a lot may find it all straightforward, the lack of information, and sometimes advice and help services, are disadvantaging people taking or defending a civil case in court, often for the first time.”

Due to advice from the Scottish Court Service that for data protection reasons they were unable to allow us access to court records, the research was confined to in-depth interviews with 35 people contacted through the Scottish Legal Aid Board and In Court Advice Services.

“This can only be a snapshot as we did not manage to reach the numbers and variety of court users needed to create a bigger picture,” says Sarah O’Neill. “However, it is very rare indeed for anyone to ask court users in Scotland for their opinions on the system – there has been little previous research into these issues. A consistent message we got back was that few knew what to expect and many were deeply concerned about understanding the language and procedures.”

In Court Advice Services, now funded by the Scottish Legal Aid Board, were generally praised by users who suggested they needed to be better publicised. Some litigants felt the services were over-stretched and lacked connections with the court’s own staff.

Sarah O’Neill says courts themselves are not seen as user-friendly:

“One complaint was that little thought seems to be given to what is convenient for court users. As one person who pursued a small claims action and represented himself put it: ‘It’s always ten o’clock and it’s always on a Thursday, but you can sit there for two hours.’

“Of course, what no research with court users will ever tell us is how many people are put off pursuing their case as a result of their preconceptions about what’s involved. This is another reason why investment in giving people a deeper understanding of the Scottish legal system is essential to opening up civil justice.”

The findings of the study are being submitted to the Civil Courts review being led by Lord Gill, and to the Scottish Government.

Notes for Editors

The interviews undertaken by Ipsos MORI with litigants covered:

* Accessing civil justice
* Appearing in court
* Fairness of process
* Self-representation
* Information provision
* Court staff
* In-court advice services
* Cost of litigation
* Timescales

Those interviewed had been involved in a variety of case types, including small claims actions, debt, housing and eviction cases and mortgage repossession proceedings. The court users interviewed fell into categories:

respondent TYPE

Civil Legal Aid Applicant : 19

Received advice from in-court advice service : 16


Defender : 26 Pursuer : 9


Case heard in court : 17 Case not heard in court : 17 Not sure whether case heard in court : 1

Representation in court

Of 17 cases heard in court Represented by solicitor in court at some stage in proceedings : 6

Represented self in court at some stage in proceedings : 9 Case heard in court but did not attend : 2

Quotes from Interviews:

[About the prospect of going to court] They seem to use a lot of legal jargon…I’m pretty much a straight talking person, I’m not one for the words that they use….I could possibly have used the wrong word or put it in a different way and it wouldn’t have helped me.

Pursuer, small claims action, received advice from in-court advice service, case not heard in court

I wouldn’t have a clue what to do anyway, they’re professionals so they know the ins and outs….I’d rather they did it and did it correct than I did it and made an ass of it.

Defender, mortgage arrears, represented by solicitor in court

“I was actually shaking to be quite honest with you….What was going to happen to me, was I going to go to jail? I was sitting outside the courtroom and I was biting my nails and I was like, ‘what’s going to happen to me?’. I was in a terrible state and the boy next to me said, ‘nothing’s going to happen to you’, and I was actually crying. I thought honestly….I thought I was going to jail. Nobody had said what would happen to me”

Defender, rent arrears, received advice from in-court advice service, represented self in court

“Perhaps a leaflet or some form of information about what to expect, you know, how the process runs through….along with my letter to appear in court.”

Defender, rent arrears, represented by solicitor in court

In-court advice services

The Scottish Consumer Council, one of Consumer Focus’s predecessor organisations, established the first in-court advice service in Edinburgh alongside Citizens’ Advice Scotland, and has been a key supporter of their expansion. There are now six in-court advice services in Scotland, in Aberdeen, Airdrie, Dundee, Edinburgh, Hamilton and Kilmarnock. The Scottish Legal Aid Board assumed funding responsibility for these services in April 2009 and is working with them to build capacity where needed and ensure that they are responsive to the needs of those appearing in court unrepresented.

‘McKenzie Friends’

Consumer Focus Scotland is also submitting its written evidence to the Public Petitions committee of the Scottish Parliament on the introduction of ‘McKenzie Friends’ to assist unrepresented litigants The evidence states that Consumer Focus Scotland supports the introduction of McKenzie Friends, and that while the research does not purport to offer a definitive conclusion on the views of court users, it does suggest that unrepresented litigants might benefit from the opportunity to have a McKenzie Friend with them in court, who could provide them with moral support and other appropriate assistance. Having such support available could help take away some of the fear associated with appearing in court and therefore potentially improve the experience of unrepresented litigants in court.

Thursday, July 30, 2009

Scottish Court Service ‘blocked work’ of £30k Consumer Focus access to justice report for Lord Gill’s civil court review

scslogoScottish Court Service blocked the success of independent research into civil justice court users. A survey of Scots experiences in using the civil justice system, funded by Consumer Focus Scotland, managed by the Scottish Legal Aid Board, and implemented by market research group IPSOS-MORI, which was initially hoped would interview hundreds of people but eventually only took in the views of 35 court users, is raising questions from consumers & solicitors after it was revealed the Scottish Court Service had effectively blocked the wider success of the research, by refusing to hand over court documents & data to the researchers. The uncooperative attitude of the Court Service has led to accusations the SCS has diminished the effectiveness of the survey, which has today been revealed to have cost the taxpayer at least £30,000.

SLAB The Scottish Legal Aid Board received £30K from Consumer Focus to manage the research. Colin Lancaster, Director of Policy & Development at the Scottish Legal Aid Board commented : "The Board received a contribution of £30,000 from Consumer Focus Scotland for the commissioning of the work. The Board contributed the internal resource to cover the commissioning exercise and project management for the research. A total of £28,400 (inc. VAT) has been paid for the development, fieldwork and reporting on the first phase of the research. The findings report will be published in the next couple of weeks. Before the research is published we will be formally handing the findings over to Lord Gill. The cost of the research should be viewed across the life of the project, including any second phase. This work is in an area where unfortunately there was little previous research to learn from in terms of approach, methodology, research tools etc.”

He continued : “We commissioned the work to a highly reputable research contractor with excellent quality control mechanisms. The work was carried out by senior researchers with expertise in qualitative research and in talking to people about potentially emotional experiences and subject areas. The field work was very time consuming, requiring our contractor to design interview schedules, work with a number of separate agencies, follow up leads, secure consent and an interview time, interview, code, analyse and report."

You can read more about the research specification for the project, here : Research Specification - Consumer Views & Experiences of using the Civil Courts in Scotland (pdf)

Consumer Focus ScotlandConsumer Focus Scotland let it be known the Scottish Court Service had refused access to court records for the research. A spokeswoman for Consumer Focus Scotland, asked about the aims of their research, said : "Our intention was therefore to gather evidence that would help us to better understand the nature and drivers of individual civil court users’ views and experiences of the sheriff courts. We hoped that the research would provide useful evidence for the civil courts review."

"We had set out to do a large scale quantitative survey of the experiences of people who had been involved in the courts process. However, we were unable to do so when early in the process the Scottish Court Service advised us that for data protection reasons they were unable to allow us access to the necessary court records. While this was very disappointing, we had to look for other ways of carrying out the research. A qualitative methodology was then developed through approaching in-court advisers, and through using data on legally aided parties held by SLAB."

She continued : "In terms of how we will use the research, the final research report following the interviews with 35 people with experience of the civil courts will be published next month, and will be sent to the civil courts review. We hope that it will provide a useful evidence base for the review and for the Scottish government in taking forward any future reforms of the civil justice system, as well as any possible future research."

"The final research report will not therefore give the broad perspective that we had initially sought, but will provide an important snapshot of the experiences of the people involved."

The whole idea of reforming Scotland's civil courts was begun over six years ago, when the Scottish Consumer Council, with the support of the then Scottish Executive, secured funding from the Nuffield Foundation to carry out a series of seminars to critically examine the civil justice system, and to encourage proposals for change and development. The SCC set up a Civil Justice Advisory Group representing various stakeholder interests, chaired by the Right Honourable Lord Coulsfield, to take the process forward.

The final report of the Advisory Group was published in November 2005. It concluded that while some aspects of the system are working well, there was a need for review of a number of aspects of the system, which in turn brought the announcement in February 2007 during the previous administration of a review of the civil courts, led by Lord Gill, the Lord Justice Clerk, which you can read more about here : Civil Courts Review

However, today even members of the legal profession questioned the effectiveness of the independent research effort, after it was leaked a few weeks ago, that plans by Scottish Ministers to use the results of the survey to scale back some of Lord Gill's proposals for civil justice reform, had to be themselves scaled back after media outlets including 'Diary of Injustice' published the fact that only 35 people had taken part in the actual research project.

A legal insider said : "With only 35 people being interviewed for a survey to support the Gill civil court review, it must make people wonder what on earth is going on in the justice system when the author of the review Lord Gill stands up at a conference, effectively calls Scots law antiquated, and then the Court Service who are running the Gill review, effectively block the Consumer Focus survey from obtaining interviews of court users by refusing to hand over documents to the research teams."

"With the obstructive attitude from the Court Service, anyone would think they didn't want the Consumer Focus research to succeed in reporting actual court users experiences to back up the Gill reforms. Why didn’t someone get MacAskill to do something about it ?"

He continued : "While I'm sure the research team has done a great job working within the restrictions forced on them by the SCS, in the end, a survey of only 35 people to back up what is being billed as a wide ranging set of reform proposals to Scotland's civil justice system is not as potent as a survey with a few hundred court users who could easily have been found had it not been for the SCS, and this would have sat a lot better alongside Lord Gill's report."

An ex highly placed official of the Scottish Consumer Council when asked for their opinion on the problems encountered by the researchers said : "The Scottish Consumer Council would never have settled for such a small head count on a project of such importance as this."

He continued : "Perhaps the Scottish Court Service felt a bit put out that independent research was being done into their own review and that was the real reason they blocked the researcher's access to more information. I think the problems of ‘data protection’ could have been easily ironed out if someone from the Scottish Government had stepped in and ‘banged heads together’."

The Scottish Court Service were asked for comment on why they had refused to hand over documentation to the research team to assist the consumer orientated survey. However, they have not replied to enquiries.

MacAskill tight lippedJustice Secretary Kenny MacAskill could have done much to assist the independent research into civil court users access to justice. The Consumer Focus report is due for release tomorrow, 31 July, and while its contents should prove interesting, I am left wondering why there has not been more cooperation between the Scottish Courts Service, Consumer Focus Scotland, the Scottish Legal Aid Board, and of course, the Justice Secretary Kenny MacAskill, who himself could have seen to it the CFS sponsored research obtained a much greater sample of people to generate as much valuable information as possible, from civil justice court users, and of course, many others across Scotland who find it impossible to even get into a court.

After all, It is fairly obvious now that in Scotland, there are many people who are denied access to the civil justice system, either through lack of access to legal representation, lack of information and advice, and because the court process is itself, intimidating, remote, complex and expensive. This prejudice, by the legal system, against the public, must be ended, with full thought given to the public interest, rather than the usual prioritising of the vested interests of the legal profession, who prefer to maintain their long held monopoly on access to justice by forcing consumers down the usual route of engaging the exorbitantly costly & very poor quality legal services on offer by Scotland’s legal profession.

Surely the needs of ordinary Scots who cannot obtain access to justice in our own country must be addressed, and the public granted freedom to use a modern day civil justice system in Scotland, rather than continue to encounter restricted access to what Lord Gill himself refers to as our Victorian-aged justice system.

Monday, July 27, 2009

Fresh appointments sleaze at Scottish Legal Complaints Commission as FOIs reveal protests against independent oversight of board member recruitment

SLCCFresh appointments row at Scottish Legal Complaints Commission as legal establishment attempts to control selection process. Serious concerns on the independence of the scandal hit Scottish Legal Complaints Commission have been expressed by both clients & consumer groups after the release of documents today showing that a Judge serving on the panel which appointed the SLCC's current board members protested to the Justice Secretary, Kenny MacAskill, over the involvement of Scotland's independent appointments regulator OCPAS - The Office of the Commissioner for Public Appointments in Scotland.

Lord Wheatley & Kenny MacAskillLord Wheatley protested to Justice Secretary Kenny MacAskill over problems with the SLCC’s appointments process. The judge in question, Lord Wheatley, himself a member of the Judicial Appointments Board Judicial Appointments Board, and also a member of the Privy Council alleged in letters to the Justice Secretary, Kenny MacAskill, released today under FOI, that the involvement of ‘outsiders’ on the SLCC’s appointments process “was constitutionally unsound in a mature democracy” and even went onto accuse the appointments regulator OCPAS as ‘being a judge in its own cause’ –something the legal establishment seems to have a habit of doing without too much concern !

Scottish Legal Complaints CommissionTransparency is seemingly not a good thing when it comes to revealing the backgrounds of those appointed to ‘independently’ handle complaints against Scottish lawyers. Lord Wheatley felt that the role of Scotland's independent appointments Commissioner was improper during the appointment of the initial batch of board members to the Scottish Legal Complaints Commission, appointments which saw mostly lawyers, ex lawyers, and ex Police appointed to the new law complaints body which was promised to better handle complaints against 'crooked lawyers' but which has degenerated into farce, scandal and openly expressed prejudice against consumers who dare raise complaints against Scotland's legal profession.

I reported on the first round of appointments to the Scottish Legal Complaints Commission here : Call for MacAskill appointments 'sleaze investigation' as revelations show Legal Complaints Commission member was subject of Police inquiry however, strangely, the letters released now under Freedom of Information legislation were not released at the time despite FOI requests … and when I went on to investigate further, the Justice Secretary tried to gag the appointments regulator from releasing information on the matter last year, which I reported here : Justice Secretary MacAskill fails in 'gag attempt' of Appointments Chief over quango jobs for lawyers sleaze

Lord Wheatley to MacAskillLord Wheatley in his letter of protest to the Justice Secretary said : "I was astonished to find the OCPAS Assessor was to take part in the decision-making process itself. I considered that this was seriously inappropriate, but in the circumstances the only realistic course was to continue with the process on the basis that I could explain my concerns to you when it was completed. I believe that I discussed this issue thoroughly and openly with the other members of the panel at all times. He went on : “My Worry can be simply expressed. It is wholly inappropriate, and constitutionally unsound in a mature democracy, for an organisation such as OCPAS to validate a decision-making process in which it elects to take part. Among other things, OCPAS serves the invaluable role of overseeing that the exercise of making public appointments is properly carried out. it can hardly claim that it is in a position to make an independent assessment of such a process when the organisation involves itself in the making of such appointments. Being a judge in your own cause has long been regarded as inconsistent with, and alien to, fundamental democratic principles."

OCPAS to Lord WheatleyAppointments Commissioner's office replied to Lord Wheatley's protests, attempting to allay the judge's 'misgivings'. The sharp protests of Lord Wheatley to Justice Secretary MacAskill drew a response direct from the Appointments Commissioner's office, defending the role of independent assessors in the appointments process in their reply to Lord Wheatley stating : "It is the Commissioner's current view that there are sufficient checks and balances in the system, such as external audit of the process, to ensure that the nature and extent of that involvement continues to be recognised as appropriate and valuable to other participants in the process."

Lord Wheatley to OCPASLord Wheatley revealed in his reply to the Appointments Commissioner, that he had not been briefed on appointments code by the Scottish Government. The reply from the Appointments Commissioner's office led to a further reply from Lord Wheatley, who climbed down somewhat from his initial protests to the Justice Secretary, but the judge revealed he had amazingly not been briefed on the code of conduct for appointments nor supplied with a copy of it from the Scottish Government, despite Mr MacAskill appointing him to the selection panel for the SLCC’s first round of appointments !

SLCC appointments scandal 'humiliation' for Justice Secretary as MacAskill forced to abandon new lay member recruitmentDiary of Injustice reported on latest SLCC appointments scandal in early July. As I revealed a few weeks ago, the SLCC was hit with a new appointments scandal this year, after one of the current lay members on its board decided to step down, forcing a new appointments round, which was started in early February 2009. However, the new appointments round was quickly cancelled in April after reports in the media of scandals involving SLCC board members and officials who had sought to exclude consumer groups & law reform campaigners from consultations and investigations into issues such as the Law Society's infamously corrupt Master Insurance Policy & the mired-in-fraud 'Guarantee Fund', two compensation schemes touted by the Law Society itself as being the "ultimate in consumer protection" but which in reality are little more than heavily corrupt schemes run by the Law Society itself to protect crooked lawyers rather than compensating clients.

I reported on the results of the research into the Master Policy & Guarantee Fund in the following two articles : 'Ground-breaking' investigation into Law Society's Master Policy insurance reveals realities of corrupt claims process against crooked lawyers & Suicides, illness, broken families and ruined clients reveal true cost of Law Society's Master Policy which 'allows solicitors to sleep at night'

Jane IrvineSLCC's Chair Jane Irvine 'wanted independent appointments assessor off her interview panel' However, the protests against the independent assessors taking part in the SLCC’s appointments process di dnot stop with Lord Wheatley, as further documents released through Freedom of Information legislation today show amazingly the SLCC's Chairman, Jane Irvine, also protested against the involvement of independent assessors to the now cancelled 2009 round of appointments, citing apparent conflicts of interest in the role of independent assessors which seem rather mild compared to the conflicts of interests most of those currently working at the SLCC have themselves, coming mostly from backgrounds associated or linked with the legal profession in one way or another.

Jane Irvine to Justice Dept protesting OCPAS SLCC's Chair Jane Irvine 'keen on having senior member of the legal profession on appointments panel'. In emails released, Jane Irvine states to the Justice Department : "You asked me just to let you have a note of why we would prefer not to have an OCPAS representative on the interview panel. As we discussed the primary reason is that of conflict. I state immediately we recognize and respect OCPAS's oversight role. We no that our appointments will be subject to scrutiny. We think OCPAS can comment independently on the process, but not if they are part of it as part of the interview panel. Put simply either they are in oversight or participation mode. We do not think that they can do both and think their value here is in oversight mode.” Jane Irvine went on : "In addition as you know I am very keen we have a senior member of the legal profession on the panel and like your suggestion of a senior member from a consumer advice/representation body if we are aiming to recruit someone from a regulatory/consumer advice background."

A spokesman for a consumer organisation expressed shock after reading the released papers from the SLCC. She said : "Clearly there is a strong indication in the papers released under FOI that the appointments process for the Scottish Legal Complaints Commission is a mess. I do not see any benefit to transparency in throwing off the independent assessors who are there to safeguard the public interest in appointments to public bodies such as the SLCC."

She went on : "Clearly there has been an organised attempt from the very beginning to undermine the independence of the SLCC as it was initially promised in the LPLA Act by what can only be described as resistance from the legal establishment to the concept of any outside scrutiny of the SLCC’s operations, even it seems in the appointments stage of placing people onto the SLCC whom the legal profession clearly want to have there without too much fuss."

OCPAS warn Justice Dept over oversight roleAppointments Commissioner’s office warned the Justice Department the independent assessor would still intervene if appointments code not complied with. In a round of further correspondence released through FOI, the Appointments Commissioner's office reported it had discussed the matter with the SLCC's Chair, Ms Irvine, but while agreeing that the assigned OCPAS appointments assessor "would play the usual role in the appointments process, with the assessor contributing as a selection panel member to the panel's collective decision", OCPAS apparently conceded to the wishes of the SLCC and the Law Society, saying the assessor "will not ask questions at the interview but will instead observe and take notes on the interview process." However, the Appointments Commissioner's office warned the Justice Department that "If the OA believes during interviews that the code is not being complied with, for example if they believe that a candidate has not been questioned on the same areas as other candidates or a candidate is questioned inappropriately, our expectation is that the OA will intervene immediately."

You can read the complete FOI releases from the Office of the Commissioner for Appointments in Scotland HERE and the Scottish Government’s FOI release on the SLCC’s now cancelled appointments round HERE

A legal insider after reading the latest Freedom of Information releases on the Scottish Legal Complaints Commission branded the commission “worthless” and “a fit up for consumers with problem solicitors”.

So we are left with the feeling that little changes in the legal world, when it comes to regulating the legal profession and handling clients complaints against crooked solicitors. The Law Society have always stated they wish to retain full control of regulation, and that wish is certainly evident in every facet of the Scottish Legal Complaints Commission, from the appointment of its board members, to senior staff, to its policy on complaints from members of the public, which for the main seem in their results to be little more than a reflection of the Law Society’s policies of whitewashing complaints against solicitors, no matter how bad they are.

While the SLCC Chair, and senior judges are quick to protest over alleged conflicts of interest relating to the independent appointments regulators, where it seems a little transparency is unwelcomed if it doesn’t come from within the legal world itself, there is not one protest in sight from those very same people over the level of injustice their colleagues in the legal profession are causing to members of the public, some of whom have committed suicide over the way they have been treated by the likes of the Law Society and thoroughly corrupt lawyers.

In the circumstances, one can easily conclude the Scottish Legal Complaints Commission is unfit for purpose, and is definitely not to be trusted by the public in its current format.

Wednesday, July 15, 2009

Suicides, illness, broken families and ruined clients reveal true cost of Law Society's Master Policy which 'allows solicitors to sleep at night'

SLCC report headerOnly a few days after the release of the Scottish Legal Complaints Commission's investigation into the claims process against solicitors, harsh evidence is beginning to emerge of the human cost to clients, where suicides, illness (some resulting in death), family break ups and huge financial losses are the horrific consequences sustained by members of the public who have tried to make claims against the Law Society of Scotland's 'Master Policy' insurance scheme, touted by the legal profession as protecting lawyers and clients but which the ground breaking report released by Manchester University School of Law on Monday reveals “is simply designed to allow lawyers to sleep at night.”

Page 8 - Consumer Focus Scotland refused cooperation from Law SocietySuicides, illness, family breakdown, loss of homes, loss of livelihood were all identified by interviewees as being directly associated with members of the public’s dealings with the Law Society & Master Policy. During the research team's investigation of claims against the Master Policy, team members were told of suicides which had occurred due to the way in which clients of crooked lawyers had been treated by the Law Society of Scotland and the insurers who operate the Master Policy protection scheme for solicitors against negligence claims. Quoting the report : "Several claimants said that they had been diagnosed with depression; that they had high blood pressure; and several had their marriages fail due to their claim. Some had lost a lot of money, their homes, and we were told that one party litigant had committed suicide."

Law Society of ScotlandLaw Society officials linked to suicide of client who claimed against the Master Policy. The suicide of one client who had dealings with the Master Policy, is apparently linked to senior officials at the Law Society of Scotland itself, who, when approached by the client to handle a complaint against his solicitor who had made major errors in handling legal business, recommended to the now deceased client he approach a well known firm of solicitors to sue his original solicitor and pursue a claim against the Master Policy for negligence. However, what the client did not know was the law firm which the now promoted Director of a department at the Law Society had recommended he approach, actually represented the Legal Defence Union, which exists to defend solicitors against both claims & complaints from clients, and who are involved in defending solicitors against over two thirds of the thousands of complaints made annually against lawyers by members of the public in Scotland.

The client, a farmer and co owner of a business, went onto unknowingly engage the law firm recommended to him by the still serving senior Law Society official, however, unsurprisingly, little or no progress was made over a lengthy period of time on the client's claim against the Master Policy, which in itself, caused severe stress and depression to the client and his family.

Matters reached the stage where the law firm, recommended to the client by the Law Society itself had done little on the case, and offered no hope of a just & fair resolution to the huge losses caused by the client's original solicitor, one evening, not long after yet another unsuccessful meeting with his solicitors, the client in question had reached a point of such depression, he committed suicide at home using a shotgun, leaving his widow & children. Several days after the client’s suicide, the same Law Society official who had recommended the law firm which had done nothing to proceed the deceased client's claim and take the original 'crooked lawyer' to court, wrote to the widow of the victim and callously informed her she had two weeks to make a complaint to the Law Society or she would be time barred.

The case itself, was investigated by the then Scottish Legal Services Ombudsman Linda Costello Baker, in 2001, who found the Law Society of Scotland had failed the deceased client and ordered they re-investigate the complaint. The Law Society then proceeded to investigate the complaints again, however reaching the same conclusions, which prompted the widow of the deceased client to return to the SLSO, Ms Costello Baker, who again investigated in 2003 and judged the Law Society had failed once more.

At least two other suicides directly associated with clients dealings with the Master Policy are known, where in both cases, clients appeared to have been put under intolerable pressure, delay, deceit and intimidation by lawyers, the Law Society itself, and the insurers to the Master Policy, that the result of the entire process was to cause the claimants to end their lives after breaking under the strain of dealings with the apparently deadly Master Policy insurance scheme.

Further excerpts from the Manchester University report into the Law Society's Master Policy & Guarantee Fund show the intolerable strain clients who attempt to claim against their 'crooked' solicitor have to endure : Claimants "described being intimidated, being forced to settle rather than try to run a hearing without legal support, and all felt that their claims’ outcomes were not fair. Some claimants felt that they should have received more support, and that this lack was further evidence of actors within the legal system being “against” Master Policy claimants. Judges were described as being “former solicitors”, members of the Law Society – and thus, against claimants. Some described judges and other judicial officers as being very hostile to party litigants."

One direct quote from the report, depicts a claimant, who was forced to become a party litigant : "I keep fighting cases, and they keep coming at me, and now I have become ill. But they still keep coming at me. They threw me out onto the street, I couldn’t get my medication, I’ve got nothing, I was homeless, ill, sleeping in the car. Now I am appealing. But I can’t get a solicitor. They are just shutting me down…. My health has been damaged, they kill you off. It's a proven fact. All of us have stress related problems after years and years of stress."

One client who had fought a nine year battle with the Law Society of Scotland and the insurers to the Master Policy over a multi million pound negligence claim which ultimately failed said : "The way that claims against crooked lawyers are handled in Scotland is criminal. The Law Society and the insurers will stop at nothing to ruin a client's life if they dare try and raise a claim for damages against their lawyer."

He went on : "I lost my business and then my house after the legal firm which was supposed to be acting on my behalf against my original solicitor, sued me for legal costs of over £72,000 after nine years of allegedly trying to take the case to court and then the whole thing coming to nothing. I found out that the law firm I took on to represent me against my original solicitor who ruined my business, had been working against me from the very start and to make matters worse, they are I hear going to merge with the law firm of my original solicitor now that my case is out of the way."

"My wife left me, took my children, and I now have little hope of ever working again. I am shattered and have been diagnosed with depression, but the solicitor I originally complained against has a good life, is an outwardly respectable member of the community, but in reality is a thief who embezzled tens of thousands of pounds from my business, and ruined my business just to make sure he could buy up the bankrupt parts for himself which is what he actually did."

He ended by saying : "If anyone asked me for advice on how to deal with a solicitor in Scotland, I'd say stay the hell away from them and even if you have to use one, do not get into a trusting relationship with them simply because if anything goes wrong, as it probably will, they will end up as your opponent in the blink of an eye and from then on your life will be made a living hell."

A solicitor I asked for comment today said :”While I must express my sympathies to the families of clients who have apparently committed suicide over their dealings with the Law Society and the bad apples among us, we as solicitors are as much a victim of the Master Policy and the Law Society as are the clients. Not one solicitor to my knowledge has even seen a copy of the Master Policy but I do know someone who once asked for a copy and was refused, then was given a sharp rebuke for even asking to see it yet we are forced to pay annually into the Master Policy if we want to continue practising law in Scotland.”

He ended by saying : “The Master Policy is all about giving the Law Society of Scotland control over the legal profession and the public. Get rid of the Master Policy and the Law Society while you’re at it, allow us as individual firms to arrange our own insurance cover, and you would see a very different, more positive legal services market in Scotland.”

Consumer Focus Scotland Consumer Focus Scotland welcomed the findings of Dr Melville & Professor Stephen’s report. Today, Consumer Focus Scotland issued a statement welcoming the findings of the report into the Master Policy & Guarantee Fund, saying : “We welcome this preliminary research into the Master Policy and Guarantee Fund. Although based on a small sample, it provides useful qualitative evidence that the current system lacks clarity for both consumers and the legal profession. We welcome the recommendation that additional research is required, which we hope can further explore and build upon the initial findings from this report.”

Page 8 - Consumer Focus Scotland refused cooperation from Law SocietyThe Law Society of Scotland refused to work with the Scottish Consumer Council on an investigation into the Master Policy in 2003 & 2004. However, it transpires from this week’s report that Consumer Focus Scotland in its previous incantation as the Scottish Consumer Council, who carried out several large investigations into problems with the Scottish legal profession, wanted to carry out an investigation into the Master Policy in 2003, however attempts were thwarted when the Law Society of Scotland refused to take part. An excerpt from Dr Melville & Professor Stephen’s report reads : “Consumer Focus in 2003 and 2004 wished to carry out desk-based research on the Master Policy. They sought the co-operation of the LSS of Scotland which was refused. Consequently the research was not undertaken.”

One large scale report undertaken by the Scottish Consumer Council took place in 1999 when the SCC’s Complaints Against Solicitors report was released. This week’s Manchester University report refers to the earlier SCC investigation as follows : “Consumer Focus Scotland has not specifically considered either the Master Policy or the Guarantee Fund, although it did state that professional indemnity insurance arrangements and complaints procedures needed to be put in place in order to facilitate the alternative business structures within the legal market. In 1999, Consumer Focus Scotland conducted a study on Complaints about Solicitors, which surveyed over 1200 people who had used the Law Society of Scotland’s complaints procedure during a one year period. During this research, Consumer Focus Scotland was contacted by a number of claimants who raised concerns about the Master Policy.”

You can read the Scottish Consumer Council’s 1999 “Complaints Against Solicitors” report HERE and the Manchester University report on the Law Society’s Master Policy & Guarantee Fund HERE :

Which logoWhich? also welcomed the research findings but expressed concern over the Insurers restrictions on the research team who were denied access to important data. Also today, a spokeswoman for Which? issued comment on the Manchester University report, and, while welcoming the findings of the research team, concern and criticism was expressed that the Law Society refused to hand over important data or a copy of the Master Policy itself to the research team. Which? said :“We welcome the research but are obviously disappointed that the Law Society did not provide the researchers with access to the Master Policy as part of their work. However hopefully what was gleaned will provide a platform for other work to come in this area.”

So, at the end of the day, as the Manchester University report of this week reveals, “Thus, the Master Policy is essentially an insurance scheme intended to provide professional indemnity insurance coverage for solicitors.The purpose of the Master Policy, the simple answer is to allow solicitors to sleep at night. It provides professional indemnity insurance cover for firms."

Jane IrvineSLCC’s Chair, Jane Irvine. What therefore, is the SLCC going to do about this and just how many members of the public have to get ill, or even die to protect a ‘crooked lawyer’ and the Master Policy, before something is done ? Jane Irvine, when asked for comment on these matters, said : “As you are aware, the research was commissioned by the SLCC and carried out by Manchester University School of Law. One of their undertakings was to conduct key informant interviews and the people who came forward were assured their own details would be treated in confidence by the researchers. These conditions have not changed.”

Ms Irvine continued : ”The SLCC is unable to comment on the individual interviews. However, the independent research is central to defining how we develop our role of oversight of the Master Policy and Guarantee Fund. In terms of the report, the experiences of the people who came forward to be interviewed were significant to the quality of the research. The information given by all those who assisted the researchers is valued by the SLCC and it is essential to the development of our oversight role.”

Justice Secretary Kenny MacAskill has so far not returned requests for comment on Monday’s report …

Monday, July 13, 2009

'Ground-breaking' investigation into Law Society's Master Policy insurance reveals realities of corrupt claims process against crooked lawyers

Law SocietyConsumer experiences in Master Policy report brands Law Society of Scotland & its insurers ‘rotten to the core’. The Law Society of Scotland and it’s insurers who handle claims against an ever growing number of 'crooked lawyers' have been branded corrupt and dishonest by clients who were interviewed for the completion of ground breaking research published today by the Scottish Legal Complaints Commission, on the role of the two client compensation schemes operated by the Law Society of Scotland, known as the Master Policy and Guarantee Fund. The report contains highly accurate accounts from victims of crooked lawyers of the torturous and often failed process of trying to make a compensation claim against a ‘crooked lawyer’ who have mishandled clients legal affairs or in a now almost daily event, embezzled clients money.

0048Insurers Marsh & Law Society imposed conditions on SLCC’s research team. However, in a startling revelation which gives an insight into the difficulties the research team faced in compiling the report, legal insiders allege that corruption is so rife in the legal services sector, the Law Society refused to hand over actual copies of the Master Policy to the research team, fearing disclosure of the highly secretive & sensitive documents would cause a rush of bad publicity to the Scots legal profession for its consistent cover up of claims & complaints against highly corrupt law firms and individual solicitors. In response to enquiries, Dr Angela Melville, who interviewed many clients for her final report, confirmed the research team did not receive a copy of the Master Policy, despite requesting it. Instead, a letter from Alistair J Sim, Director of the US Insurer Marsh, who had executives convicted of criminal offences in the United States , attached strict conditions to what little information was disclosed : “Please note that the consent of Marsh and Royal & Sun Alliance plc to the production of the enclosed documents is condition on the research team agreeing not to quote from the documents, or any part of them, whether text or figures, in the report to the Scottish Legal Complaints Commission.”

“The documents which are produced are confidential and are commercially sensitive. They are provided to the research team only and neither the documents nor copies should be provided to any other party nor should the content of the documents be disclosed to anyone outside the research team. At the conclusion of the research project, the documents should be returned with confirmation that foregoing conditions have been complied with and that no copies have been retained. If the research team is unable to agree to the foregoing conditions, the documents should be returned along with confirmation that no copies have been retained.”

Jane IrvineSLCC Chair Jane Irvine attacked 'conditions imposed by Law Society on research'. Jane Irvine, Chair of the SLCC condemned the Law Society's insurance brokers, Marsh for not handing over necessary documents which the SLCC itself will need for its 'monitoring role' if that is to be achieved successfully under its legislative powers. Jane Irvine said : “The research is unique as it is the first to examine how the Master Policy and Guarantee Fund function but we are very disappointed that conditions imposed on the data delivered by the Law Society of Scotland’s broker, proved unacceptable and the transparency of operation, which is key for all users, is not apparent."

The Law Society of Scotland today issued a statement confirming the conditions of secrecy imposed on the independent research team, claiming “During the course of this research, representatives of the Law Society were interviewed and various Master Policy documents were supplied to the researchers. Some of the information was commercially sensitive and confidential so the researchers were asked not to share it with other parties and that copies were not made or kept.". Surely such levels of secrecy imposed on independent investigations only serve to preserve the corruption which necessitated the investigation in the first place.

A legal insider who was briefed on the interviews taking place alleged the Law Society attempted to control what was said by the solicitors to the research team, claiming : "Anything to do with the Master Policy or the Guarantee Fund, the Law Society wants to control, to the point of rigging the results. Because this was an independent research team they couldn't control what was being reported by way of interviews from members of the public, but they did ensure they had a firm grip on what solicitors said and what information was released from the Law Society itself."

You can read Dr Melville & Professor Stephen’s report on the Master Policy & Guarantee Fund, HERE :

Page 23Report reveals Law Society Chief Kenneth Pritchard, now a Sheriff blocked a client's access to justice. The highly controversial research report contains direct references to evidence revealed by Cabinet Secretary John Swinney in the Scottish Parliament’s debating chamber, showing the most senior officials of the Law Society of Scotland, including a serving Sheriff, Kenneth Pritchard, intervened in claims against corrupt lawyers, ordering solicitors & legal firms to drop courtroom litigation against colleagues in the legal profession who had negligently handled clients affairs, in some cases losing (or taking) millions of pounds of clients money for themselves. John Swinney said in Parliament : “I can also cite to you extracts from a petition that was made to the Court of Session for Judicial Review, in which there is a quote from a letter from a Mr Pritchard who was the Secretary of the Law Society of Scotland in which he writes to a firm of solicitors: “I am anxious that you should protect your back in this matter, because every solicitor who has acted for this particular person has ended up with a claim against them.’ You will appreciate that this is a private and confidential letter, not to be shown to Mr Macintyre, the sole purpose of which is to give what I hope is helpful advice to protect both you and your firm”.

John SwinneyJohn Swinney’s revelations broke open the corruption at the Law Society of Scotland and insurance companies connected with the Master Policy. Mr Swinney concluded his statement by saying “So really quite active encouragement from an official of the Law Society of Scotland for a practitioner not to act and deliver legal representation to an individual concerned.”. Mr Swinney said he had no comment to make on the matter today, but Government insiders said the Cabinet Secretary “was satisfied the information he had revealed was accurate and that it clearly contradicted the Law Society’s version of events on Master Policy claims to the Justice 2 Committee & the Scottish Parliament.”

Policy is to protect both says Law Society - Kenneth PritchardFormer Law Chief Kenneth Pritchard claimed Master Policy protected solicitors & clients alike. While the ex Law Society chief, now Sheriff Kenneth Pritchard claimed that Master Policy protected both clients & solicitors, as I reported earlier HERE , the SLCC’s report issued today makes a nonsense of Mr Pritchard’s claims and the Law Society of Scotland’s continued policy of promoting the Master Policy as the “ultimate in consumer protection”. Dr Melville & Professor Stephen’s report reveals a much different picture of the motives of the Master Policy, clearly showing it exists to protect solicitors, no matter how corrupt they have become or what damage they have done to unsuspecting and overly trusting clients. An excerpt from the report issued today reads : "What is striking is that there is no mention of protection of interests of solicitors’ clients in Section 44 of the Solicitors Scotland Act 1980. Thus, the Master Policy is essentially an insurance scheme intended to provide professional indemnity insurance coverage for solicitors.The purpose of the Master Policy, the simple answer is to allow solicitors to sleep at night. It provides professional indemnity insurance cover for firms."

My own case, involving the complaint against crooked lawyer Andrew Penman, is reported in the research as follows : "Not content with slowing my case and claim against the solicitor, the Law Society of Scotland… directly intervened in my claim by letter and instructed my solicitor… not to take instructions from me… The Law Society, not content with intervening with my solicitors directly, proceeded to obstruct and cancel my Civil Legal Aid I had been trying to obtain for my case." You can read more on that HERE.

The findings concluded that clients of lawyers are left out in the cold, despite the Law Society of Scotland today continuing its claims that the Master Policy and the Guarantee Fund offers "unrivalled consumer protection. Clients of solicitors would now do well to consider their positions where what may appear to be a trusting relationship with their legal agent could break down in a calamitous manner at any second, From the report : "The overall impression given to the public seems to be that the Master Policy protects the interests of legal services clients, when, in fact, it protects the interests of solicitors."

Also contained in the report are fairly typical experiences of clients who find out they have been the victim of a 'crooked lawyer' but who then find it difficult to gain fair hearings of their complaints or claims : "The first step for most claimants was to try and resolve the case by speaking to the most senior partner in the firm. None of the claimants that we spoke to felt that the firm made any effort to address their concerns. Instead, they all described being met by partners who were aggressive, and this attitude also appeared to add to their sense of shock.”

One reported experience of a client who made a complaint against their solicitor : "So I phoned up the senior partner of the firm. He then started up investigations, and I made an appointment to see the senior partner. When I went in to see the senior partner, after having a brief conversation with him, he looked at me across the desk, and he sat back in his chair, and he folded his arms, and he said “I’m now your opponent.”

Clients of solicitors would now do well to consider their positions where what may appear to be a trusting relationship with their legal agent could break down in a calamitous manner at any second, rendering the one trusted solicitor an opponent who will stop at nothing to ruin their once so admiring client.

Another report of a client who found the Law Society constantly delaying their claim against a crooked lawyer, in an experience common to many clients, is highlighted in the following manner : "Additionally, from the time my claim was made, the Law Society of Scotland, who were still considering complaints made against the solicitor… constantly halted their investigations, putting forward excuses they could not investigate matters while I was raising a claim for negligence against the Master Policy. This stop-start investigation policy continued for well over a year and it was obvious there was an intentional go-slow on the part of the Law Society of Scotland in their investigations to prevent me from obtaining evidence from their investigations to put into my claim to the Master Policy against the solicitor."

Debating chamberMSPs at the Scottish Parliament are also accused of failing to help constituents who get into difficulties with the legal profession. Members of the public interviewed by the research team also criticised politicians and consumer groups for not doing enough against a very strong legal profession, when even the most horrific cases of client abuse by lawyers went unresolved : "These claimants explained that after discovering that the legal system was not necessarily going to provide a route to justice, that they had attempted to try other avenues to get their cases resolved. They had campaigned for their cause to various consumer interest groups, had approached their MSPs, participated in Government inquiries, turned to the newspaper, and yet they felt that these efforts had met with little avail. For some, this failure provided further evidence of the deep ‘corruption’ and influence of the Law Society."

SLCCThe Scottish Legal Complaints Commission was condemned by members of the public in the report as just another Law Society. Unsurprisingly, people who were interviewed by the research team felt the SLCC was of no help to them, reported in an excerpt here : "The SLCC is made up of people with jobs connected to the ‘Law Society Inc.’. It is not independent. That is what we wanted. The Law Society is a law unto their own, they are protected. And the SLCC is part of that. The new SLCC won’t help me… From October to now, how they exercise their remit, there is a cosy relationship between the SLCC and the Law Society… They are supposed to be at arm’s length. But documents released under FOI, these documents show that they aren’t."

Eileen MastermanSLCC Chief Executive Eileen Masterman. The SLCC’s Chief Executive, Eileen Masterman, commented on the research saying : “The research is very much exploratory and this is due to the short time-span and the small number of claimants and solicitors it was possible to interview. The research is a useful first step in providing the SLCC with a meaningful insight into the Master Policy and Guarantee Fund and how it can affect complainers. Members of the SLCC Board will now benefit from this important first-stage research which will develop our role overseeing the Master Policy and Guarantee Fund.”

The research team conclude their report by stating : “ What has clearly come through these interviews has been the very divergent views of solicitors and claimants/consumer groups as to the primary function of the Master Policy. The former tend to see it as simply a professional negligence insurance designed to protect individual members of the profession. The latter see that its primary purpose should be to protect the public against incompetent members of the profession. Whilst these are not incompatible aims we have come to the view that the rhetoric of the Law Society of Scotland encourages the latter perception but practice is more inclined to the former. In other jurisdictions there is a more explicit statement that it is the former.”

“Those claimants to whom we spoke were very much of the opinion that it was difficult to establish liability of a solicitor for professional negligence. It would be desirable to test this claim by looking at the record of the Master Policy in terms of claims and compensation paid. Data which would have allowed us to do this was requested from the Law Society of Scotland but was only made available the day before this Report was due to be submitted. Furthermore the Law Society of Scotland and Marsh put conditions on the use of the data in this Report which were unacceptable to us and to the Chief Executive of SLCC.”

“We would recommend that the Scottish Legal Complaints Commission undertake a longer term research project which will allow researchers to examine the experiences of a representative sample of claimants and solicitors as well as analyse data on claims provided by the Master Policy’s broker under reasonable conditions of use.”

So, now what ? Will the SLCC actually do something for people who have had their claims destroyed by the Master Policy ‘protection racket’ ? Will SLCC members such as Margaret Scanlan who it was revealed, tagged claimants to the Guarantee Fund as “chancers” learn that just because victims of ‘crooked lawyers’ try to claim compensation for their stolen funds does not necessarily make everyone a chancer ?

Well, for now, it appears the SLCC will do nothing .. and wont even seek a copy of the Master Policy itself, so there is much more campaigning to be done on these issues to ensure that cases involving claims, and also complaints against crooked lawyers, are considered and regulated properly by a wholly independent organisation free of any involvement with the legal profession .. and that is most certainly not, the SLCC.

Thursday, July 09, 2009

Scotland's Chief Judge Lord Hamilton asks Parliament 'to defer' McKenzie Friend petition after Scots wait 39 years for access to justice

Lord HamiltonScotland's Lord President Lord Hamilton asked Holyrood 'to defer' McKenzie Friend petition. THIRTY NINE YEARS after the role of a McKenzie Friend was recognised in the English courts, allowing court users south of the border the invaluable assistance of a 'McKenzie Friend' in cases where litigants could not obtain legal representation, Scotland's Lord President Lord Hamilton, has asked the Scottish Parliament 'to defer' the recent McKenzie Friend petition (Petition PE1247) until after the release of the Lord Justice Clerk Lord Gill's review of Scotland's Civil Justice system which is widely expected to make recommendations on introducing the availability of McKenzie Friends to users of Scotland's courts.

Lord President Lord Hamilton to Petitions Committee - McKenzie FriendLord Hamilton claims 'the Review will make a recommendation on this matter in its Report’. “Thank you for your letter of 6 May 2009. This asks whether the Court of Session supports the introduction of a "McKenzie Friend" facility and for reasons as to its view. “As it is noted in the Official report of the discussion of the Committee at its meeting on 5 May, this is a matter which is under consideration by the Civil Courts Review under the chairmanship of the Lord Justice Clerk, the Rt Hon Lord Gill. In its consultation paper, the Review asked for views on the following question; "Should a person without a right of audience be entitled to address the court on behalf of a party litigant and, if so, in what circumstances?"

“In light of this we can, I think, reasonably conclude that the Review will make a recommendation on this matter in its Report. I understand the publication of that document to be imminent. In view of this, I do not at this stage wish to express a view as to the position of the Court of Session on the matter. I should instead wish to consider the matter in light of whatever the Review recommends. If the Committee were to decide to defer further consideration of the petition until after the Review has been published, I should be content to respond further at that stage."

However, while the Lord Justice General may be comfortable in asking Holyrood 'to defer' consideration of the McKenzie Friend petition .. most feel that Scots legal rights have been deferred long enough after an outrageous thirty nine year wait for the introduction of the McKenzie Friend facility in Scotland while the rest of the United Kingdom has successfully used the facility to help individuals access to justice.

For one thing, there must now be an explanation as to why Scots have had to wait thirty nine years to exercise the same legal rights the rest of the country has used effectively in resolving legal disputes ... but a legal insider today answered that question very clearly, accusing the Scottish legal profession and the Law Society of Scotland of blocking the introduction of McKenzie Friends to Scotland's courts simply because it would ruin lawyers business and challenge the Law Society’s monopoly on public access to justice.

He said : "The only reason McKenzie Friends have been kept out of Scotland's courts is money, nothing else."

"If you look at the kinds of civil cases in the Scottish courts, up to maybe 30% or even higher of those could be resolved by the litigant appearing themselves, helped by a McKenzie Friend. You don't need to be a rocket scientist to work out that if law firms lost that 30% or more of their business they would not be making as much money as they have done by maintaining a grip on rights of audience in Scotland for forty years."

He went on : "Forget all those arguments about clogging up the courts with people who are unqualified to represent themselves or don't know the law properly. The court is there to serve the public, not itself or the legal profession's requirement for a fast and protracted buck out of the client's purse. People themselves know their own case best, no matter what lawyers might say ... and if you have a party litigant, assisted by a McKenzie Friend, there may well be much speedier resolutions to a lot of low level civil actions which are clogging up Scotland's courts for no reason other than to generate more legal fees for solicitors who are just out to make a profit out of stringing out client’s civil cases for years."

In all likelihood, this statement is true, as most of the significant legal reforms for civil justice, from the small claims limit (held in Scotland at £350 for 17 years while in England it is up to £5,000), to the public’s lack of of choice in legal representation in Scotland (The reforms of the Law Reform 1990 Act held back for 19 years) and now coincidentally we find the rest of the UK has successfully used McKenzie friends for 39 years .. while the legal establishment in Scotland forbade its introduction .. fearing loss of earnings. If you look at Scots rights in civil justice as things currently stand, all the delays of the reforms I have quoted .. and many I have not .. simply boil down to lawyers being concerned they are losing market share (and thereby, profit from legal fees) to people who can perfectly handle their own legal affairs, rather than going to a solicitor to have their legal affairs mishandled .. as is more often the case than not these days.

As readers will know, I reported on the campaign to bring McKenzie Friends to Scotland in previous articles, and efforts to secure a fair hearing for the petition were greatly enhanced by the appearance of Scotland's only independent MSP, Margo MacDonald, speaking on the petition's behalf, also supported by submissions from consumer organisation Which? and law reform campaigners including myself.

You can read my earlier reports on the McKenzie Friend petition here : Battle to bring McKenzie Friends to Scotland continues as Holyrood investigates ‘access to justice’ proposals, also McKenzie Friend proposal gains friends as consumer organisations rally to support petition’s hearing at Scottish Parliament & my initial report on the petition here : 'McKenzie Friend' proposal to Parliament seeks to end 39 years of lawyers monopoly over Scots access to justice

You can watch Margo MacDonald’s testimony to the Scottish Parliament's Petitions Committee here :

Margo MacDonald speaks on behalf of McKenzie Friends Petition to Holyrood.

English Courts Guidance for McKenzie Friends 0001It is recognised in England & Wales that Human Rights legislation allows litigants to argue for the presence & use of a McKenzie Friend in their case. It is also of significant importance that in the Lord President of the English courts guidance on the use of McKenzie Friends, where the English Lord President specifically states : “When considering any request for the assistance of a MF, the Human Rights Act 1998 Sch 1 Part 1 Article 6 is engaged; the court should consider the matter judicially, allowing the litigant reasonable opportunity to develop the argument in favour of the request.” This glaring difference between how the English courts treat the McKenzie friend issue, versus the restrictions in Scotland, raises the possibility the Scottish courts refusal to allow litigants access to the McKenzie Friends has violated the rights of individuals for a considerable number of years.

You can read the full guidance for McKenzie Friends in England & Wales in pdf format, HERE and now we must wait on the ‘imminent’ publication of the Civil Justice Review to see how the issue of rights of representation in Scotland’s courts and the McKenzie Friend question is to be dealt with, and at least in the Chairman of the Review, Lord Gill, we seem to have someone who is forthright enough in his views to advocate change …

Lord GillLord Gill has already branded Scotland's Civil Justice system as "Victorian" and in need of reform. Lord Gill, who has chaired the review of Scotland's woefully antiquated civil justice system and who is well known for his forthright views, told a Law Society of Scotland conference that "The civil justice system in Scotland is a Victorian model that has survived by means of periodic piecemeal reforms. But in sustance, its structure and procedures are those of a century and a half ago. It is failing the litigant and, therefore, failing society." You can read more of Lord Gill's comments on the inadequacies of civil justice in Scotland, here : Senior judge hits out at Scotland's 'Victorian' court system and you can download Lord Gill's speech from the Law Society's website (you better download it quickly) here : Lord Gill's speech to Law Society conference (pdf)

You can read more about the Civil Justice Review here : Civil Courts Review

However, Lord Gill’s civil justice review does face a few problems, as the politicians are now realising the scale of his proposals, efforts are being undermined by consumer organisations such as Consumer Focus Scotland, to back up the Lord Justice Clerk’s findings, with a joint Consumer Focus Scotland – Scottish Legal Aid Board survey ruined by elements of the Scottish Government & Scottish Courts Service, restricting the total amount of people questioned to a meagre 35 out of thousands of potential civil court users. I broke this story as an exclusive, earlier, here : Justice Secretary accused of attempt to undermine Lord Gill civil justice review as Government backed survey targets only 35 court users

A source at the Scottish Parliament said today “There will be no delay in the McKenzie Friend Petition as the petitioner himself has already been notified of a new hearing in September. We have to move on, despite the wishes of others not to progress matters which are clearly in the public interest.”

So … McKenzie Friends should, and must, come to Scotland. It is our right. Rather than be second class citizens when it comes to the justice system in Scotland, we should be first class citizens .. and part of being first class citizens with a first class justice system, means taking away the power of the legal profession to dictate who among us has access to justice and who does not. It is everyone’s right to have access to justice and justice will only be done when that is the case.