Friday, February 19, 2010

McKenzie Friends for Scotland still a way to go as Holyrood seeks clarity from Lord President on guidance, use & entitlements for court users

Lord Hamilton 2Lord President Lord Hamilton. LORD HAMILTON, Scotland’s chief judge is to be asked by Parliament to ensure guidance and information is available to members of the public seeking to use a McKenzie Friend in Scottish Courts, after it emerged today that two months on from Lord Woolman's Court of Session ruling during November 2009 in Martin Wilson v North Lanarkshire Council & others, granting the first use of a McKenzie Friend in Scotland, members of the public are still being given contradictory from the Courts Service on whether they can or cannot use a McKenzie Friend in a Scottish court.

Currently, there are only two recorded uses of McKenzie Friends in Scotland’s civil courts, with both being forced to ‘sit behind’ the party litigant who requested their help & assistance, and no guidance yet exists on the Scottish Courts Service website or within Scottish court buildings, where litigants can find out how to request and use the services of a McKenzie Friend. Indeed, several reports have come in from individuals claiming many of Scotland's regional courts know nothing of the McKenzie Friend issue, in some instances court officials claiming McKenzie Friends are not allowed, while others say its possible but not yet written into law.

The Scottish Parliament’s Petitions Committee, during its latest hearing on Petition 1247, McKenzie Friends for Scotland, debated the information provided by the Scottish Government, who claimed that information that a “mechanism of a supportive friend is already available in the Scottish Courts, in most cases, most of the time”, claims which were disputed by the Law Society, the Scottish Courts Service & Consumer Focus Scotland who all referred to the fact a “supportive friend” (a McKenzie Friend) had yet to be introduced to Scotland’s courts.

A Scottish Government insider claimed his colleagues in the Justice Department were reluctant to use the term “McKenzie Friend” as they had been caught short on the issue, after enquiries to the Scottish Courts Service revealed no such “supportive friends” (McKenzie Friends) had ever been used in civil cases in Scotland prior to Lord Woolman’s November ‘09 ruling, this coming after McKenzie Friends have been successfully used in England & Wales, and many other international jurisdictions for forty years.

He said : “There is no doubt about it. This 40 year gap where McKenzie Friends have effectively been kept out of Scotland by successive administrations and the legal profession, looks bad for all concerned. The Justice Secretary and Lord President who started this ‘supportive friend’ business both look a bit foolish for claiming something exists when clearly it does not and never has.”

McKenzie Friends for Scotland debated at Holyrood once more :

margo_macdonaldMargo MacDonald spoke further on McKenzie Friends. At last week’s Holyrood hearings on the McKenzie Friend petition, independent msp Margo MacDonald spoke further on the issue, saying : “The petition and the back-up material are self-evident. An opinion poll has been conducted and, although we should take the results with a pinch of salt, there is a consistent level of support—66 per cent—for the idea of McKenzie friends. We have had word from the bench—from on high—that it has always been open to litigants who defend themselves in Scottish courts, but there does not seem to be one view from the bench on the matter."

Margo MacDonald then went onto criticise the current regime in the Court of Session, which requires a McKenzie Friend to sit behind the party litigant they are in court to assist. Margo MacDonald said : “The view that figures in our papers has it that "a McKenzie Friend must sit behind" the person in court. That is of no use at all, as anyone knows, because people need someone beside them. It seems a nit-picking point, but it is a matter of whether the support or information that can be given to the person pleading their own case is functional or dysfunctional. I personally think that it is self-evident. We should just do it.”

murdo_fraserMurdo Fraser MSP (Conservative) also attended the hearing in support of the McKenzie Friend petition, commenting on the level of support in Scotland for the introduction & use of McKenzie Friends saying : “I will briefly expand on that. Margo MacDonald has referred to the Which? survey. To be precise, I think that 85 per cent of Scots who were surveyed said that it would be useful to have a scheme whereby those who could not afford or find a lawyer could have a knowledgeable friend sitting beside them—that shows the level of support for the McKenzie friend.”

McKenzie Friends Which researchPetitions Committee heard that a survey from Which? showed 85% support in Scotland for McKenzie Friends. Murdo Fraser went on to criticise responses from Justice Secretary Kenny MacAskill on the issue, which apparently avoid explaining the points under discussion. Mr Fraser continued : “I wrote to the Cabinet Secretary for Justice on the matter before Christmas, and I got a reply on 31 December, which considered the idea of legislation to amend the current rules so as to allow lay representatives rights of audience. That misses the point. Mr Mackenzie is not looking for rights of audience for McKenzie friends; he just wants them to have the right to sit beside the litigant in court, not behind them. That is the point that Margo made well. All that requires is a change in the court rules. The procedure is simple, and I am not aware of any serious policy objection to such a change happening—it just needs to happen.”

Clearly, as in England & Wales, McKenzie Friends could easily exist in Scottish courts, with a mere change in the court rules, rather than the elaborate proposals of a legislative amendment to the Legal Services Bill, currently under consideration by the Scottish Parliament. However, as the Scots legal establishment have proved, and are still proving resistive to change, including the introduction of McKenzie Friends as they are used in the rest of the UK, legislation may well be required to ensure the public get the right to use a McKenzie Friend, rather than leaving the issue to be decided at a judges discretion on a case by case basis, which of course, the judges appear to prefer at this time.

Margo MacDonald raised the question of a McKenzie Friend being a right, rather than being left to the judge. Ms MacDonald said : ”As I should have mentioned earlier, there is also some debate as to whether we want the judge to have the determining voice on the matter. Should it be a right? I am not quite sure about that. I cannot see anything about that aspect in the papers that have come back to us.”

nigel_donNigel Don MSP (SNP). Nigel Don, the Parliamentary Liaison to Justice Secretary Kenny MacAskill appeared to criticise the Lord President for presenting two meanings of a McKenzie Friend, i.e. the “supportive friend” which has led to much confusion inside & outside the Parliament on this petition. Nigel Don said : “The papers that are before us are interesting, and they demonstrate that certain people have got the wrong end of some sticks. There is clear confusion as to what on earth a McKenzie friend is supposed to be. I thought that the Lord President put it kindly, saying that there are two meanings of the term. Actually, there was only ever one, but some people did not bother to find out what it was before deciding to call it something else. We now have two meanings, and that is not helpful.”

Mr Don continued, attempting to resolve the Lord President’s dual terms on McKenzie friends, saying : “If we go back to the original meaning, which is a friend who sits beside the person in court and helps them through, it is not difficult. I think that the Lord President is saying that he thought there was no reason for the possibility not to be there, but the rest of the papers seem to indicate that it was actually never there. However, that seems to have changed within the past few weeks. We should take it that there has been a step in the right direction, and we should not worry about why exactly that happened. It might be coincident with what is happening with the petition.”

Mr Don continued, saying : “If we can persuade our legal brethren and the gentlemen and ladies on the bench that it would be a good idea for the friend to be allowed to sit beside the party litigant, that would help—as I am sure judges would agree.”

On the subject of the Scottish Government’s proposals to make an amendment to the Legal Services Bill, giving McKenzie Friends a right of audience, Mr Don was less than enthusiastic, indicating the plan may well be dropped in favour of allowing McKenzie Friends to operate in Scotland as they do in all other jurisdictions.

Mr Don said on the rights of audience matter : “We need to be careful in the Parliament not to start telling judges what to do. Parliament has given, and the courts have acknowledged, rights of audience for lawyers. It would be very difficult to start deciding what the rights of audience should be for people who are not qualified as lawyers. It rightly belongs to the judge on the bench to decide what is helpful in that respect and what is not helpful. We must be careful how to phrase any recommendations on that point.”

“The other meaning—or rather, misuse—of "McKenzie friend" involves extended rights of audience for lay folk in certain circumstances. I suggest that, however important that point is, that is not what the petition is about, and it never was about that. That is a substantial issue that will have to be addressed in its own right at some point if we think that it is important to do so. I suggest that we cut that issue off from the clear purpose of the petition.”

bill_butlerBill Butler MSP (Scottish Labour) also supported the drive to allow McKenzie Friends to sit beside their party litigant in court, saying : “I think that we should write to the Scottish Government and to the Lord President of the Court of Session to ask whether they will recommend that McKenzie friends should sit beside, rather than behind, the litigant. Perhaps we can ask them to respond to the petitioner's concerns about the Court of Session's lack of awareness of the existence of such a facility. I take Nigel Don's point that the facility is always at the court's discretion, and we do not want to tell the Lord President what to do, but it seems that the Lord President is more than amenable to the system. We need to disseminate the information among those who hold court.”

After further suggestions from Margo MacDonald, Murdo Fraser supported the Committee's intentions of seeking clarity on the McKenzie Friends issue, saying : “Nigel Don made a fair point in suggesting that things seemed to be happening; I would like to think that that is the case. However, it would be better to have some clarity, so that anybody who turns up in court with a friend knows that they will not suddenly be told by the presiding judge, "No, your friend cannot sit beside you—I don't like the look of him. He will have to sit at the back of the court." I am inclined to agree with the course of action that Bill Butler proposes.”

The Committee closed, authorising the following Written Questions for Petition 1247 to the Scottish Government & Lord President :

Scottish Government—

Lord President of the Court of Session—

  • The Scottish Government states in its submission (PE1247/S) that the “mechanism of a supportive friend is already available in the Scottish Courts, in most cases, most of the time” however, the submissions from the Civil Justice Committee of the Law Society of Scotland (PE1247/I), the Scottish Court Service (PE1247/K) and Consumer Focus Scotland (PE1247/H) still refer to the introduction of such facility rather than it already existing. Will it/the Lord President therefore encourage a more widespread use of a “McKenzie friend” when appropriate to “assist a party litigant and, with the court’s permission, to address the court”, as recommended in the Lord Gill's Civil Courts Review and how it will do so ?

  • Will it/the Lord President recommend that such “McKenzie Friend”should sit beside a party litigant and not behind them? If not, why not?

  • What is its/the Lord President’s answer to all the points raised by Murdo Fraser MSP and Margo MacDonald MSP during the discussion?

Lord President of the Court of Session—

  • What is your answer to the concerns of the petitioner (PE1247/V) regarding the lack of awareness of the Court of Session about the existence of such a facility? How will this be addressed and when?

  • Can you confirm that there is a presumption in favour of a “McKenzie friend” to assist a party litigant, unless deemed unsuitable by the Court?

So really this all boils down to getting the seating arrangements in order – just as everyone else in the world enjoys their McKenzie Friend sitting next to them, instead of the peculiarly & utterly useless Scottish solution currently in place where the McKenzie Friend sits behind their party litigant, and of course, ensuring there is a presumption of the right to have a McKenzie Friend assist a litigant, rather than the matter being left at the court’s discretion on a case by case basis.

You can find out more about the English courts guidance on using McKenzie Friends, HERE and read my earlier reports on bringing McKenzie Friends to Scotland, here : McKenzie Friends for Scotland, the story so far

The facility of having a McKenzie Friend by one’s side in court has worked well in the rest of the world for decades. Surely we in Scotland can manage the same, even with the Law Society and Faculty of Advocates still shaking the bananas from the trees in protest ?


Anonymous said...

Lord Gill's review of Scotland's dysfunctional Justice System recommended the introduction who could address the Court on a party's behalf, and indeed in England and Wales the presumtion is that this will be allowed by the Court.

Nigel Don seems, as usual, to be engaged in a 'smoke and mirrors' exercise, touting his own brand of misinformation - perhaps mindful of his function as Mr McAskill's assistant.

Anonymous said...

For something that was relatively simple in 1970, London, the Scottish version seems incredibly complicated.

Probably a hint your justice system stinks.

Anonymous said...

I'm inclined to think giving the McKenzie Friend a right to address the court will end up causing lots of problems so I dont support that idea.

Anonymous said...

Was that a parliament ? lol and I thought HoC was bad haha

Anonymous said...

Mr Don gets his mortgage paid for doing this.No wonder its talk talk talk and little action.

Anonymous said...

cant get a lawyer so could you get me a mckenzie friend ?
its a criminal case

Anonymous said...

“The petition and the back-up material are self-evident. An opinion poll has been conducted and, although we should take the results with a pinch of salt, there is a consistent level of support—66 per cent—for the idea of McKenzie friends.

Well said Margo, you are a gem.

Anonymous said...

Well covered thanks.Watched the video.Was Margo hinting at the elephant in the room (you) when she made that little joke ?

Anonymous said...

How they get away with keeping Scotland in the dark ages for 40 years out of this McKenzie Friend subject is a disgrace.
Even though I see you also exposed its first use last year I think we should all be asking WHY Scotland has had to do without this not just lets bring it in.

Good work Peter keep it up.

Anonymous said...

I'm curious about Nigel Don.

Is he really trying to blame Hamilton for that double definition of a McKenzie Friend or is this just another delaying mission to prevent more McKenzie Friends in Scottish courts ?

Also you said some people are still being told they cant have a McKenzie Friend even after the first ruling on it?

What a shambles.

Anonymous said...

Comment at 10:08pm

I agree.40 years and they just give it to us after Peter's reporting and the petition.

There MUST be an inquiry about this when everyone else had it for all that time

Brilliant work Peter!

Anonymous said...

It is Nigel Don who has 'deliberately' got the wrong end of the stick and misrepresented the petition.

Nowhere does it say in the petition that the petitioner wishes to exclude from his appliction any of the practise accepted by the Courts in England and Wales - which includes allowing a nominated person seeking to address the Court on behalf of an unrepresented party.

Anonymous said...

Nigel Don appears to have again been economical with the truth, for example he 'forgets to mention' in his parliamentary biography that he possess a degree in law.

Anonymous said...

Hi Peter

I've read all your postings about the McKenzie Friend issue since April 2009.

We are nearly one year on so clearly the Parliament and courts have been playing for time.If this had been truly wanted it could have and should have been in within a week of suggestion.What a pit it takes a blogger a litigant and a petitioner to get things rolling in Scotland.

Good work,A big feather in your cap and a big black mark against the legal establishment of Scotland.

Peter Cherbi said...

# Anonymous @ 4.27pm

Yes, on orders of Kenny MacAskill by the sounds of it ...

# Anonymous @ 5.28pm

Yes, Scotland's justice system is well behind the times ... over 100 years behind the times according to Lord Brian Gill (the Lord Justice Clerk)

# Anonymous @ 6.23pm

Its a danger .. there will have to be rules governing the rights of audience part of it, should this idea of the Scottish Government materialise (I dont believe MSPs will support it in its current draft form)

# Anonymous @ 8.43pm

You should be able to obtain the services of a solicitor for a criminal case although if you have difficulty I might be able to recommend one for you. Post a further comment with contact details, marked "Do not Publish".

# Anonymous @ 9.30pm

Indeed yes ...

# Anonymous @ 9.42pm

I am not an elephant ...

# Anonymous @ 10.08pm

I certainly agree with your comments .. there should indeed be an investigation into exactly why McKenzie Friends have been kept out of Scottish courts for the past 40 years.

40 years is a long time to deny people access to justice .. that much deserves to be debated ...

# Anonymous @ 10.47pm

Yes .. courts in Aberdeen, Glasgow, Edinburgh and several smaller regional courts are giving out conflicting information to litigants ... some say McKenzie Friends dont and never will exist in Scotland, some say you can have them but not yet and others say we have always had them just that no one has ever thought once to ask for one in the 40 years McKenzie Friends are supposed to have existed after their introduction in England & Wales in 1970 ...

Asking for the stats on McKenzie Friends use or requests in Scotland also drew a blank to the tune of "Oh, we don't collate that kind of information".

A shambles indeed ...

# Anonymous @ 11.17am

I believe the polite description of Mr Don's analysis of the petition is ... "misinformation" ...

# Anonymous @ 11.18am

One gigantic omission ... considering what is under debate ...

# Anonymous @ 1.24pm

Thanks ... and I can assure you the Scottish legal establishment have a litany of black marks against them .. hence the stale state of Scottish justice - virtually non-existent, non-accessible to the people, and about as far from honest as we are from the moon ...

Anonymous said...

I am sure some of you are on the wrong track with regards to rights of audience and McKenzie Friends.

A McKenzie Friend in England & Wales is not allowed to address the court nor in my opinion would it ever be desirable for this to occur at a later date.

To do so would require a strict code of conduct by which those acting as a McKenzie Friend with a right of audience must adhere to,just as solicitors must adhere to the rules of court.

Inevitably one person acting as a McKenzie Friend with a right of audience will ruin it for all.Surely no one would wish for that to happen.I certainly do not.

Peter, you have linked the guidance from the President of the Family Division often enough so I would direct those who are misquoting the rules governing the use in England & Wales to Page 3 of that document under the heading "What a McKenzie Friend may not do"

"A MF is not entitled to address the court, nor examine any witnesses. A MF who does so becomes an advocate and requires the grant of a right of

A McKenzie Friend and an Advocate are entirely separate matters.Please do no confuse one with the other as in my opinion,granting rights of audience to McKenzie Friends opens the possibility to ruin the facility for all.

Anonymous said...

McKenzie Friends must strike fear into lawyers for them to be delaying it all this time.Lawyers are Criminals !

Anonymous said...

I recall that in the Scotsman article reporting the first use of a McKenzie Friend in Scotland a member of the Faculty of Advocates stated that;

1. We have never had McKenzie
Friends in Scotland and any
suggestion to the contrary is
reminiscient of Soviet

2. The Courts have in their
power - as matters presently
stand - to grant this access
as a statuatory entitlement
without the need for any
external approval.

So why are we still waiting?

Peter Cherbi said...

# Anonymous @ 4.10pm

Lord Gill's Civil Courts Review recommended granting rights of audience to McKenzie Friends, although yes, I'm sure there will be the odd occasion ... just as there are with solicitors & advocates, when a McKenzie Friend addressing the court will stray from the expected path of what is said ...

The Civil Courts Review reference to Lord Gill's recommendation is in Volume 1, here "51.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."  

# Anonymous @ 4.50pm

Strike fear ... as in cause them to worry about not being able to charge high fees to potential clients who may use a free McKenzie Friend instead ...

# Anonymous @ 5.11pm

I imagine we are waiting while the legal establishment come up with yet more excuses to delay the wider use of McKenzie Friends in Scotland ...

Anonymous said...

Dont you feel the parliament is kind of asking the same questions again & again ?

Pretty appalling really after 40 years of no one really writing about it until now.

Anonymous said...

last comment


Anonymous said...

So we can use a McKenzie Friend now in Scotland, right Peter ?

Anonymous said...

With all due respect to Brian Gill and his review he cannot have any actual experience of McKenzie Friends because as you point out so well McKenzie Friends were never allowed in Scotland up to now.

I still think its a bad idea to give McKenzie Friends a right of audience.I'm sure you realise the problems created by allowing a McKenzie Friend to address the court.Get one or more very poor McKenzie Friends and it ruins it for the rest of us.No thank you.I have appeared for a litigant as a McKenzie Friend and needed no opportunity to address the court.Giving a McKenzie Friend a right of audience is in my opinion very wrong and will lead as I said before to trouble later on.

Anyway why are we debating this Peter you know very well Lord Woolman must have gritted his teeth to allow the McKenzie Friend in the case you refer,probably because you have been giving them all such a hard time with headlines.

Just get the seating arrangements fixed (sit beside,not on top,below or behind) and get the court system moving so you have a framework in Scotland where someone can walk into a court building and find out all they need to know about McKenzie Friends.

I'm sure you can manage that after the great change you have already achieved !

Anonymous said...

I agree with those who are saying this issue is going on for too long before action is taken.I looked up McKenzie Friends on the web and basically it comes from one court action in 1970.

Can we not even manage that in Scotland in 2010 ? Pathetic to say the least and well our legal system must be really screwed when we have to rely on a blogger to get a change in the law !

Anonymous said...

I've been reading your blog all day.Very interesting! Reads like an episode of 24!

Keep up the good work!

Peter Cherbi said...

# Anonymous @ 11.26pm

Yes ... you can.

# Anonymous @ 3.47pm

The same happens in any field, I suppose, even with solicitors & advocates .. its just that if they say the wrong thing, the court is supposed to bring them to heel, and of course, clients can complain to the Law Society, Faculty of Advocates or the SLCC .. and we all know how useful those three organisations are !

However I do admit there may be problems with giving a McKenzie Friend a right of audience as you point out ... as one cannot be allowed to spoil it for all.

# Anonymous @ 6.37pm

I dont think the Scottish legal system can manage much which is not in its own interest ...

Bringing in McKenzie Friends to Scotland is, I can assure you, a team effort.

# Anonymous @ 8.17pm

No, that's too fast !

Anonymous said...

I am sure this is being delayed just so no one can really use it.How sad.

Anonymous said...

I am just so disgusted at the law in Scotland after reading this blog.I feel very sorry for you all having to live under judicial dictatorship where someone cant even bring a friend to court.Disgusting and beneath contempt.

Anonymous said...

Good luck Peter !

Anonymous said...

Margo is certainly the star of this debate and telling it as it is.Why cant we just do this ??

QCPF said...

Get rid of the Master Insurance Policy (here after referred to as MIP) ran by the Law Society of Scotland, Marsh Insurance Brokers and Royal Sun Alliance Insurance. This may go some way to creating a more level playing field whereby lawyers would be willing to take on board clients with a genuine grievance involving an opposing negligent / incompetent law firm, lawyers or lawyer that have cost that business millions of pound in revenue, there core business and the running up of vast pettifogging fees threw the stringing out of unneeded negligent /incompetent work.
Litigants involved in the Scottish court system only need McKenzie Friends because they can’t trust or beleave in law firms, lawyers or their various partners due to the fact that it is not in the interest of any law firm to help a client sue another law firm or individual lawyer/partner due to the MIP.
The MIP is the compulsory Professional Indemnity Insurance arrangement which creates a closed shop for all Scottish solicitors working in private practice. You cannot practice as a lawyer without being party to the MIP. The law society will not give you a certificate allowing you to practice as a lawyer unless you pay into the MIP. Thus insuring that no solicitor will help a client sue another lawyer.
Claims are handled by the Master Policy insurers Royal & Sun Alliance, & Marsh UK whose pockets are so deep it insures (excuse the pun) that they will hold you up in court until you run out of money, go mad and/or die, or perhaps all three.
This insurance only provides cover of up to £2 million for any one claim, above that amount individual partners of the law firm are personally liable, doubling insuring that no solicitor will help a client sue another lawyer in Scotland. Many business contract run into the 10s if not the100s of millions pounds so what use is a £2million fund if your lawyer costs you 5, 10, 50 or 100 million pounds of your personal or business wealth.
In short using the protection MIP of the Law Society of Scotland to sue a negligent lawyer is impossible. You would have to use a McKenzie Friend to help you as they would be uninfluenced or should that be uninfected by the MIP.
Occasionally the Law Society of Scotland will throw a small one man/woman band lawyer to the wolves by striking them off and allowing them to go to jail if/when they get caught ripping off a clients estate or business but the majority of the big robbers…oopps I meant practices get protection from prosecution or exposure by staling any litigant under such umbrellas as the MIP or vexatious litigant procedures.

Peter Cherbi said...

QCPF @ 22 June 2010 16:59

Thanks for your comment, which I agree with in its entirety ... getting rid of the Master Policy and those who run it, insurers, and even the Law Society itself will help get to the root of the problems clients face when trying to sue negligent lawyers ...

However, the Master Policy has many supporters, including it would seem, the Scottish Government itself (who use the same insurance services provided by Marsh & RSA to the legal profession) ... clients, and consumers in general need to be made more aware and wary of dealing with solicitors who are insured by the Master Policy & Marsh ...

Personally I would advocate a boycott of any solicitor insured by the Master Policy as a starting point ..