Scotland’s Lord Justice Clerk Lord Gill publishes his two year long Civil Courts Review. FORTY YEARS after McKenzie Friends were first introduced in England & Wales, the long awaited Civil Courts Review, undertaken by the Lord Justice Clerk, Lord Gill, has finally ended the decades long discrimination against Scottish court users, by recommending the introduction of McKenzie Friends to Scotland as well as a whole range of much needed improvements for Scots access to justice, including the introduction of simplified court procedures, more advice on legal rights, increased use of mediation, and finally and end to the infamous exclusion of Class Action litigation in Scotland’s antiquated civil courts system.
Lord Gill’s Civil Courts Review finally recommends the implementation of McKenzie Friends for Scotland. After a long hard battle fought by petitioners to the Scottish Parliament, law reformers,and consumer organisations throughout the UK who joined in campaigning for the introduction of McKenzie Friends in Scotland, Lord Gill's report finally recommends their implementation, stating : “If the court considers that it would be helpful in any case, a person without a right of audience (a ‘McKenzie friend’) should be permitted to address the court on behalf of a party litigant. The court should have discretion to refuse to allow any particular person to act as a McKenzie friend on grounds relating to character or conduct and to withdraw a permission to at as such at any time. The rules of court should specify the role to be played by such persons and should provide that they are not entitled to remuneration.”
Australian Barrister, Ian Hanger QC supported McKenzie Friends for Scotland. Lord Gill's recommendations on McKenzie Friends appear to be greatly influenced by a Holyrood public Petition Petition 1247, raised by Mr Stewart MacKenzie, which saw fantastic support from consumer organisations such as Which? and Consumer Focus Scotland, who both campaigned to bring McKenzie Friends to Scotland. However, insiders at Holyrood and from the legal profession point to Ian Hanger's invaluable and timely letter to the Scottish Parliament's petitions committee as 'having sealed the deal' on McKenzie Friends coming to Scotland. Ian Hanger QC wrote in his letter : “In Australia, most of our courts have the power to permit a non-qualified person to, in effect, represent a litigant. A McKenzie Friend does not have a right to address the court. That right is confined to quietly assisting the unrepresented litigant. The Australian experience has been that it has worked successfully. … I cannot see that the floodgates would be opened by permitting, in appropriate cases, the presence of the McKenzie Friend to help the unrepresented litigant. In some cases you will get a brilliant law student who will provide enormous assistance to the Court .. I would urge the Parliament to permit the appearance of the McKenzie Friend."
McKenzie Friend petitioner, Mr Stewart MacKenzie, when asked for reaction on Lord Gill's recommendations on McKenzie Friends, said : "I am delighted the people of Scotland are to be finally made equal with the people of England & Wales, after forty long years of inequality in the Scottish courts system."
I can also exclusively reveal that Scotland's Court of Session is liable to see a quick test of Lord Gill's McKenzie Friend recommendations later this week. On the basis of Lord Gill's positive approach to the introduction of McKenzie Friends in Scotland, this Friday will see a test of the judiciary's resolve over the McKenzie Friend issue, where a request is to be made to judges to allow a party litigant the use of a McKenzie Friend in a long running civil case.
A legal insider said today : "On the basis of Lord Gill's unequivocal support for the issue of McKenzie Friends in Scotland, the court should now move on the Lord Justice Clerk's recommendations and allow the use of McKenzie Friends."
He continued : "I welcome the news there is to be a test case this week for the use of a McKenzie Friend at the Court of Session. This request, coming on the back of the Civil Courts Review and much support from individuals & consumer organisations for assistance in the court will be an interesting challenge of the court's resolve on the McKenzie Friend issue. I wish the party litigant all the best in his request."
A consumer affairs insider however claimed that while Lord Gill's recommendations on McKenzie Friends were very welcome, there would be greater benefit to all court users if substantive rules and obligations were placed upon the courts by legislative means, to ensure the public had full & proper rights as per the application and use of McKenzie Friends in Scotland's courts.
She said : "There is no getting away from the fact that Scotland has missed out on McKenzie Friends for some forty years. I think that fact speaks for itself in that the courts and legal profession have resisted their use, on grounds of doing lawyers out of profits rather than worrying about the quality or availability of legal representation to those who seek it."
"I think consumers rights, and indeed the law itself would be greatly enhanced if a legislative approach was taken to the McKenzie Friends question, going one step further than the English courts, and making it an unequivocal right for a litigant to be able to request and receive the assistance of a McKenzie Friend, if so desired."
Consumer Focus Scotland welcomed Civil Court Review recommendations. Martyn Evans, Director of Consumer Focus Scotland, commented “This review sets out a bold range of challenging but pragmatic recommendations. It gives a clear and prominent voice to the interests of citizens as users of our civil justice system. The prize set out by Lord Gill is a civil justice system fit for the 21st century. There is bound to be a great deal of debate over his proposals. We hope the interests of individual users of the civil justice system are given due consideration and weight in that debate alongside the interests of judges, lawyers and business.”
Examples of recommendations from Lord Gill’s Civil Courts Review that will increase access to justice include:
* introducing a new more user friendly simplified procedure for cases involving lower monetary value and housing matters, designed with unrepresented court users in mind.
* Promoting increased public legal education about legal rights and responsibilities and where to go for help.
* The extension of in-court advice services throughout Scotland.
* The introduction of ‘McKenzie friends’ to assist unrepresented parties in court.
* Encouraging parties to consider the use of mediation and other forms of alternative dispute resolution.
* The introduction of a procedure for multi-party (class) actions in Scotland.
You can download the report in pdf format, from the Scottish Courts Website at the following links :
The Report of the Scottish Civil Courts Review was launched today Wednesday, 30 September 2009 and is available to download below:
- Volume 1 Chapter 1 - 9 (Covers McKenzie Friends, procedures, advice etc, 2.99Mb)
- Volume 2 Chapter 10 - 15 (Covers mainly the issue of Class (multi party) actions etc, 2.16Mb)
- Synopsis (215Kb)
Justice Secretary Kenny MacAskill has proved resistant to reforming laws such as rights of audience & representation, which benefit the legal profession itself. Certainly, I am very happy to see the long overdue proposals to reform civil law in Scotland, but now the issue of bringing McKenzie Friends to Scotland rests with the Justice Secretary, Kenny MacAskill and the Scottish Government, who have so far, proved thoroughly resistive to bringing reforms into Scots Law to make us equal with our English cousins.
Law Society of Scotland & Faculty of Advocates remain resistant to McKenzie Friends. There is also the question of opposition from the Law Society of Scotland and the Faculty of Advocates, who both opposed the McKenzie Friends petition at the Scottish Parliament, mostly because allowing McKenzie Friends into Scottish courts would introduce individuals who will most probably be outwith the influence and control of the legal profession. I reported on the legal profession’s opposition to the introduction of McKenzie Friends in Scotland, in two earlier articles, here : 'Control Freaks' at Law Society say “No” to McKenzie Friends as Holyrood submission signals resistance to Lord Gill's civil justice review & here : Legal profession ‘afraid of losing profits & control of access to justice’ as Faculty of Advocates protest against McKenzie Friends for Scotland
Such a welcome move of bringing in fresh blood to Scotland’s courts, who are motivated to assist litigants in a professional & capable manner, and who don't have a Law Society leash attached round their necks, will be of considerable help & benefit to all users of Scotland’s courts.