Monday, January 18, 2010

Scotland to get ‘talking’ McKenzie Friends as consumer pressure on court access & rights of audience prompts new proposals for Legal Services Bill

Debating chamberScottish Parliament will hear proposals to introduce ‘talking’ McKenzie Friend to Scotland. MCKENZIE FRIENDS FOR SCOTLAND will soon ‘move from silent pictures to the talkies’, and have legislative backing for their use in Scots Law, according to sources today at the Scottish Government’s Justice Department, after Communities Safety Minister Fergus Ewing gave testimony to Holyrood’s Justice Committee last Tuesday informing MSPs the issue of McKenzie Friends will be introduced to the Legal Services Bill during ‘Stage Two’ of its passage through the Scottish Parliament.

Fergus EwingCommunities Safety Minister Fergus Ewing reveals McKenzie Friend for Scotland reforms. Speaking to the Justice Committee, the Scottish Government’s Communities Safety Minister, Fergus Ewing said : “As the committee might be aware, we are considering introducing to the bill a number of areas at stage 2. In brief, those are McKenzie friends, which have been the subject of much discussion and debate in recent months; possible amendments to rights of audience in the supreme courts, subject to the recommendations of the on-going Thomson review; various technical amendments to the 1980 act; and the regulation of will writers.”

A spokeswoman for the Scottish Government’s Justice Department issued a brief confirmation of the Communities Safety Minister’s comments, saying : “We are considering an amendment to the Legal Services (Scotland) Bill regarding McKenzie friends.”

This change of heart comes as a surprise, after my coverage of the Scottish Parliament’s debate on Lord Gill’s Civil Courts Review, where Mr Ewing appeared to derail any early hopes of creating legislation to ensure that Scots could enjoy the same rights as court users in the rest of the UK to request and utilise the services of a McKenzie Friend. You can read my report on that particular debate, which features video footage of the Communities Safety Minister talking on the issue of McKenzie Friends, here : Holyrood debate reveals civil justice reforms & McKenzie Friends may be a long way off as Scottish Ministers stumble over Lord Gill review proposals

However, even better news awaits for Scots who find themselves in court but without a lawyer, as a legal insider today revealed the amendments being considered by the Scottish Government may go much further than just allowing McKenzie Friend in Scotland, as one of the options currently under discussion will actually give a McKenzie Friend the right to speak on behalf of a party litigant, which is a dramatic departure from the rules governing McKenzie Friends in England & Wales who are not allowed to address the court on behalf of the person they are assisting.

He said : “I understand one of the issues under discussion for inclusion in the Scottish Government’s McKenzie Friend proposals on the Legal Services Bill is to allow a McKenzie Friend to address the court on behalf of a party litigant in certain circumstances.”

He continued : “While I’m sure many would welcome these developments, I understand the Law Society of Scotland is firmly against such a move to grant McKenzie Friends full rights of audience so you can expect a few letters of sharp protest from the legal profession to the Parliament if this proposal reaches the Justice Committee intact.”

A spokeswoman for one of Scotland’s consumer organisations said she was delighted to hear of the idea that McKenzie Friends were to be given the right to speak on behalf of unrepresented court users.

She said : “If McKenzie Friends were to be granted full rights of audience in Scotland, it may greatly assist unrepresented court users who like many of us are easily lost in the maze of court procedures and legal technicalities. Allowing a McKenzie friend to speak on behalf of a party litigant may very well speed up cases and ensure that access to justice is delivered to many who cannot afford or cannot obtain any form of legal representation provided by solicitors.”

The change of heart by the Scottish Government on the issue of McKenzie Friends comes after considerable debate in the Scottish Parliament over Petition 1247, which has seen widespread support from all quarters and even support from other international jurisdictions, for the introduction of McKenzie Friends in Scotland, where for forty years, the legal profession, opposed to extending rights of audience and courtroom assistance to anyone outside the legal fraternity has ensured that McKenzie Friends were kept out of the reach of Scots court users for four decades.

While Scotland’s legal fraternity were generally against the implementation of McKenzie Friends in Scotland, the UK’s Ministry of Justice, several consumer organisations including Which? & Consumer Focus Scotland were very much in favour of extending McKenzie Friends, and Holyrood also received a key supporting representation from the original McKenzie Friend himself, Australian Barrister Ian Hanger QC, whose presence in McKenzie v McKenzie 1971 originated the entire concept of a McKenzie Friend, which has now reached across the globe to many international legal jurisdictions.

You can read my earlier coverage of Ian Hanger QC’s support for the introduction of McKenzie Friends in Scotland, here : McKenzie Friends for Scotland gain support from ‘original McKenzie Friend’ while Scottish Government hint at delays to civil justice reforms and reports of support from the Ministry of Justice & consumer organisations, here : McKenzie Friends for Scotland backed by Ministry of Justice & Consumer Focus as Holyrood petition moves to end 40 year Scots access to justice delay

Also, not forgetting that Lord Gill’s Civil Courts Review supported the introduction of McKenzie Friends to Scotland, which I featured in an earlier article, here : Scots Law 'shake up' as Lord Gill’s Civil Courts Review supports McKenzie Friends, Class Actions & wider access to justice for all

One of the strongest political supporters of McKenzie Friends in Scotland, has been independent MSP, Margo MacDonald, who attended all sessions where the Scottish Parliament’s Petitions Committee discussed the McKenzie Friends issue.

Margo MacDonald MSP – instrumental in bringing McKenzie Friends to Scotland.

Lord WoolmanLord Woolman granted first use of McKenzie Friend in Scotland’s civil courts. It is widely thought that Ms MacDonald’s support has been instrumental in ensuring the McKenzie Friends debate reached the critical stage that Scotland’s courts were eventually forced to grant the first use of a McKenzie Friend in Scotland, after a ruling in the Court of Session, issued by Lord Woolman in mid November in the long running civil court damages action of Wilson, Martin v North Lanarkshire Council & C Simpson & Marwick, finally establishing a legal basis for the use of McKenzie Friends in a Scottish court, albeit Lord Woolman’s ruling only permitted the McKenzie Friend to sit behind the party litigant … an issue which most see as continuing to obstruct court users while opposing counsel have no such impositions of difficult seating arrangements.

You can read my coverage of the first use of a McKenzie Friend in Scotland, here : First use of McKenzie Friend in Scotland as Court of Session sweeps aside 40 years of lawyers monopoly over public access to justice

Lord Woolman’s initial ruling in Wilson, Martin v North Lanarkshire Council & C Simpson & Marwick,, and a second ruling in TODS MURRAY v [Defenders] (1) ARAKIN LIMITED; and (2) Mr Andrew McNamara on 1st December 2009, came after the Lord President, Lord Hamilton and Scotland’s Justice Secretary Kenny MacAskill both claimed in letters to Holyrood’s Petitions Committee there was no need to introduce McKenzie Friends to Scotland as such assistance had already existed in Scottish Courts. However, both the Lord President & Justice Secretary’s claims were not supported by facts as an investigation revealed that all McKenzie Friends requests up to Lord Woolman’s November 2009 ruling had been refused by Scottish judges in civil action cases.

You can read my earlier report on Lord Hamilton’s ‘claims’ to the Scottish Parliament, here : Lord Hamilton accused of ‘being deluded’ over McKenzie Friends in Scotland as judge's attack on Holyrood petition contradicts courtroom reality

You can read all my earlier reports on the battle to bring McKenzie Friends to Scotland here : McKenzie Friends for Scotland - A battle worthy of a McKenzie Friend

While we wait to see what proposals the Scottish Government have in store for a ‘talking’ McKenzie Friend for Scotland, and no doubt, what rules will govern their use and surely, what guidance the court must follow when a request is made for the use of a McKenzie Friend, you can read the full guidance from the Lord President of the Family Division on the use of McKenzie Friends in England & Wales, which can be downloaded here : President's Guidance: McKenzie Friends.

What we need is a similar model of guidance, expanded, and importantly, ensuring that McKenzie Friends are dealt with as a Human Rights Article 6 issue, for use in Scotland’s courts as is the case in the rest of the UK.

34 comments:

Anonymous said...

“While I’m sure many would welcome these developments, I understand the Law Society of Scotland is firmly against such a move (OF COURSE THEY ARE, THEY ARE AGAINST ANY MEASURE THAT REDUCED THEIR GRIP ON THE SYSTEM. IT SHOULD BE THE OUT LAW ED SOCIETY OF SCOTLAND) to grant McKenzie Friends full rights of audience so you can expect a few letters of sharp protest from the legal profession to the Parliament if this proposal reaches the Justice Committee intact.”

WELL LAW SOCIETY, SELF REGULATION WILL END NO MATTER HOW MUCH YOU WANT TO CONTROL EVERYTHING. YOU ARE A CRIMINAL CARTEL WHO CANNOT STOMACH CLIENTS HAVING PROTECTION AGAINST SELF REGULATORS. VICTORY TO CLIENTS, THE LEGAL SYSTEM LIKE THE PARLIAMENTARY SYSTEM IS IN THE STONE AGE. MASSIVE REFORM IS REQUIRED AND WE WILL WILL. EVEN MR DOUGLAS MILL IS FACING REALITY.

Anonymous said...

Doubtless the result of all your writing on the subject.Good work !

Anonymous said...

It will be interesting to see how MacAskill words that and anyway why is Fergus Ewing at the Justice Committee when it should have been the Justice Secretary himself ?

Anonymous said...

Giving the unwashed & untrained among us a right of audience in court is not a good idea.

Anonymous said...

Time now then to start pushing for that other (far more significant) recommendation by Lord Gill - as supported by the Dean of the Faculty of Advocates - namely the introduction of class actions.

See Petition 1234 currently before the Justice Committee for more.

Incidentally McKenzie Friends are allowed to speak on behalf of a litigant in England and Wales and if anything restrictions on when they can do so have eased over the last 18 months.

Anonymous said...

Doesn't this defeat the whole point of having a McKenzie Friend which is to have someone to write notes etc while you do all the talking ?

Anonymous said...

I can just imagine the Law Society falling over themselves to kill off this idea so keep writing about it Peter !

Anonymous said...

if this works out you should be congratulated for your tenacity on the McKenzie Friend !

Anonymous said...

What a turn around after 40 years of "sod off" from the courts just to keep lawyers in work.Only because you have been reporting it of course!

Anonymous said...

If Wilson v North Lanarkshire Council has already established the use of a McKenzie Friend then why does there have to be legislation to introduce McKenzie Friends?

Anonymous said...

Given the decades of stubborn betrayal and conspicuous abuse of the Scottish Legal Profession - ably aided and abetted by the Law Society of Scotland - I believe I am not alone in wishing the so-called 'unwashed and untrained' a voice in the Civil Justice System. How could they do any worse?

Anonymous said...

I was very disappointed to read that - after Lord Gill's review and discussion with their MSP - the class action petitioners were persuaded that the general agreement rendered their petition redundant (see the last two written submissions accompanying the petition number 1234).

Very bad advice I think and unbelieveably naive of the petitioners to rely upon the legal establishment 'doing the decent thing' - without a hot poker behind them. Hope I am proved wrong.

Anonymous said...

Fantastic news !

I am all for anything that stops lawyers ripping off people for stretched out court cases with the only aim to secure higher fees !

McKenzie Friends are to be free from what I read so that will dent the lawyers wallets for sure !

Anonymous said...

Very good.
You should also write about the well known Glasgow lawyer and friend of politicians who had one of his criminal clients pour petrol through the letterbox of a woman he represented in a divorce case because she refused to have sex with him for an unpaid bill
Want more details?

Anonymous said...

3:49pm

Presumably because the SNP dont have the votes to pass the bill thus saving Kenny MacAskill the embarrassment of seeing his bill go down the parliamentary poop chute

Anonymous said...

If McKenzie Friends are granted right of audience I think you will find the rules governing their use will have to be far tighter than the guidance you refer to for English courts.

Anonymous said...

Good to see the Scots are waking up to dumping lawyers.Keep it up folks !

Anonymous said...

Margo McDonald pushed for this in parliament, well done Margo.

Anonymous said...

Good work Peter and I agree with those who say it will help people a lot to have a representative they can trust to speak up for them in court especially without motive of wanting to be paid or just prolong the case to make more money like lawyers do !

Anonymous said...

Quite a step up after not having it for so long but as I read in comments it looks like the bill they are attaching it to wont pass the vote so is this being done on purpose just to say we tried and couldn't get it through ?

Anonymous said...

Interesting convo with a lawyer from Dundas & Wilson who claims you have personally cost the legal profession in Scotland over £100m in lost business !

BLOODY GOOD JOB MATE !

Anonymous said...

We should do the same with ours ..
http://news.bbc.co.uk/1/hi/world/asia-pacific/8467064.stm

China jails senior judge for life over corruption

A Chinese court has sentenced a former Supreme Court judge to life in prison for taking bribes and other corruption charges, state-run media have reported.

Huang Songyou is the most senior judge to have been convicted in China on such charges, Chinese media have said.

He was convicted of accepting 3.9m yuan($570,000; £348,000) in bribes while he was deputy head of the Supreme Court.

He has been thrown out of the Communist Party and will not be allowed to hold public office again.

Huang was also convicted of embezzling 1.2m yuan in government funds in 1997 when he was president of a lower-level court in the southern province of Guangdong.

Hefty sum

He confessed to the charges after he was removed from his position on the Supreme People's Court in 2008. His property had been confiscated, the official Xinhua news agency said.

"Huang knowingly violated the law by trading power for money and taking a hefty sum of bribes, which has produced a bad impact on society, and should be punished severely," Xinhua quoted the court verdict as saying.

China has launched an anti-corruption drive, targeting top officials - but Huang, 52, is the most senior judicial figure to fall since the Communist Party took power in 1949, a Supreme Court official told Xinhua.

Courts in China are theoretically independent, but are tightly controlled by the Communist Party, correspondents say.

Anonymous said...

Anonymous said...

Very good.

You should also write about the well known Glasgow lawyer and friend of politicians who had one of his criminal clients pour petrol through the letterbox of a woman he represented in a divorce case because she refused to have sex with him for an unpaid bill
Want more details?

Yes we do

Anonymous said...

I have a case against my local council (Edinburgh City) and lawyer just dropped me at the last minute.
Asked about having a McKenzie Friend at the Court of Session today and they said you cant have one in Scotland! LIARS!

Peter Cherbi said...

# Anonymous @ 7.05pm

Yes, I was surprised myself to learn the Class Actions petition had been closed by the petitioners .. apparently some at the Petitions Committee expected the McKenzie Friend petition to be closed on similar grounds, simply because the Civil Courts Review recommended the implementation of McKenzie Friends ... however in this case, it's a good thing the petitioner would not be fooled by promises which are seldom kept, particularly when politicians are involved.

# Anonymous @ 7.54pm

Sounds like a story for the newspapers ... forward me more details and I will see the case gets the deserving publicity.

# Anonymous @ 10.18pm

It seems the message has not got through to the Court's 'ground troops' on the issue of McKenzie Friends and the case law which now permits individuals in Scotland to request a McKenzie Friend .. however in some cases, particularly the Court of Session, they should know better ...

Keep me posted on your case please.

Thanks everyone for your comments & input .. there will be more to come soon on the McKenzie Friends issue so stay tuned ...

Anonymous said...

Anonymous said...

Interesting convo with a lawyer from Dundas & Wilson who claims you have personally cost the legal profession in Scotland over £100m in lost business !
=====================================
I like this, but another lawyer also said "we have paid a terrible price for saving private Penmann" or something similar to this. In any titanic struggle, there are always oppressors who reap the whirlwind. Peter is going a superb job. Lawyers are a scourge, parasitic vermin who prey on clients. But not any more, the tide is turning.

I ask lawyers to be adult and mentally put themselves in their clients shoes. You would not like to be on the receiving end, would you? I detest all of you. As soon as someone tells me they are a lawyer, conversation is killed off.

Anonymous said...

Anonymous said...

China jails senior judge for life over corruption.

Pity we cannot do the same to the Law Society High Command and their ten thousand members.

Anonymous said...

Lawyers are phychological terrorists. They do not understand or care about people who have no legal rights. Peter you are right, it is a lonely place to be when the total legal system is against you because you want justice against crooked lawyers.

Oh Lawyers, Justice means fairness, what is just or fair about a client complaining about their lawyer when people like Mr Douglas Mill are committed to killing the complaint off. The Law Society of Scotland is a hub of Mr Mill's, that is why it's reputation is in the gutter.

I was at Motherwell College last week and I told my fellow students what is going on in Scotland's legal circles. So Peter you have others who will start reading your blog, because I told everyone lawyers are stealing clients money, that made them take notice, because most of them have bought their homes, I told them about wills, etc. Your blog is brilliant Peter, only self regulators hate your work. It is because they know you are right, and have right on your side.

Anonymous said...

Curious to see how this works out and also congrats to you Peter for pursuing this so much for everyones benefit

Anonymous said...

Courts in China are theoretically independent, but are tightly controlled by the Communist Party, correspondents say.

Yes like the Scottish Legal System is tightly controlled by the Law Society of Scotland.

Finally thanks to www.sacl/info Scotland Against Crooked Lawyers for the latest newsletter. It will be copied and handed out to others I can assure you.

Peter Cherbi said...

# Anonymous @ 6.04pm :

"Interesting convo with a lawyer from Dundas & Wilson who claims you have personally cost the legal profession in Scotland over £100m in lost business !
BLOODY GOOD JOB MATE !"

If anyone at Dundas & Wilson are looking for someone to blame for "lost business" they should look back to the Law Society itself, including of course Mr Penman, Mr Howitt and the many characters like them.

This is where the real "lost business" starts, when the public see those who are supposed to represent their legal or financial interests are entirely untrustworthy characters, who are shielded by self regulator bodies from actions which in any other arena would merit a jail sentence.

The Scottish legal profession is itself to blame for its own difficult circumstances and its lack of will to clean itself up demonstrates its members cannot be trusted.

Anonymous said...

The Scottish legal profession is itself to blame for its own difficult circumstances and its lack of will to clean itself up demonstrates its members cannot be trusted.

Yes Peter exactly, when a client finds out they have a crooked lawyer, accountant, followed by a crooked regulator. These people cannot be trusted in any capacity and if they have lost a lot of money it is the Penmann's. Howitts, Mills, Yelland who are to blame. On the 20th of January 2010 no client has anywhere to go for help when their lawyer ruins them.

Lawyers are losing money because they are corrupt rats, and their crooked ways have caught up with them. They are legal thieves protected by the Law Society/SLCC thieves. To Scotland's lawyers, accountants you are all criminals from law school to Lord Hamilton, self regulating criminals.

You are reaping your nemesis.

Anonymous said...

This is where the real "lost business" starts, when the public see those who are supposed to represent their legal or financial interests are entirely untrustworthy characters, who are shielded by self regulator bodies from actions which in any other arena would merit a jail sentence.

YES PETER TWO TIER SCOTTISH JUSTICE IN ACTION.

Anonymous said...

Nothing but a delaying tactic on the part of the Scottish Government - McKenzie Friends never required legislation in England and the guidance you refer to again did not require a law to make it happen.