Tuesday, March 02, 2010

Consumer legal chiefs question Lord Hamilton’s plans for McKenzie Friends as calls grow for fairer deal for Scots court users

Lord Hamilton 2Lord Hamilton’s plan for McKenzie Friends criticised. LEGAL CHIEFS from WHICH?. the well known consumer organisation who are playing a strong role in bringing the McKenzie Friend to Scotland, have raised serious questions over plans announced last week by Scotland’s top judge, Lord Hamilton, to finally allow McKenzie Friends in Scotland’s civil courts, some forty years after the well known courtroom helper to many, the ‘McKenzie Friend’, came into existence in England & Wales, during a 1970 London court case (McKenzie v McKenzie).

While initially welcoming Lord Hamilton’s proposal, to bring forward an Act of Sederunt to amend the Rules of the Court and thus finally allow McKenzie Friends to be used in Scottish courts, Legal chiefs at Which? expressed serious concerns over Lord Hamilton’s now widely criticised plan to require a McKenzie Friend have “relevant experience”, which has for now gone undefined but raises fears from many it means a legal background. I reported on Lord Hamilton’s plans for McKenzie Friends in Scotland, last week here : Exclusive : McKenzie Friends for Scotland ‘are go’ as Lord President yields to Holyrood access to justice petition for Scots court users

Which Head of Legal Services - McKenzie Friends for ScotlandDeborah Prince, Head of Legal Services for Which? said in a letter to the Scottish Parliament : “We do however wish to note several concerns about the proposed implementation of McKenzie Friends and would ask that the Petitions Committee consider these in their deliberations. Namely, we are concerned that Lord Hamilton proposes a McKenzie Friend should be required to have 'relevant experience' and not be related to the litigant. We see absolutely no reason why this information should be requested or relevant in granting permission for a McKenzie Friend. We do not believe, for instance, that a husband or wife should be prevented from acting in this capacity, where the litigant feels this would be helpful. Therefore the proposal that the MF should have no interest in the case is extremely unhelpful.”

Ms Prince continued : “We also wish to take issue with the Lord President's phrase, 'quietly advising the party litigant on (i) points of law and procedure', as we feel this needs to be qualified, perhaps 'quietly advising the party litigant on points of law and procedure if/where this is appropriate'.”

The Head of Legal Services for Which? went onto query why the Lord President appeared to be intentionally refraining from even using the phrase “McKenzie Friend” within his plans, an omission which many inside & outside the legal establishment see as bringing in an unnecessary complication to the debate.

Ms Prince commented : “We note that Lord Hamilton does not use the term 'McKenzie Friend', preferring to refer to 'lay assistant'. We believe the term McKenzie Friend describes a specific function which is well understood in several countries, including England and Wales and Northern Ireland, and think it would be clearer and make more sense if the term was also adopted in Scotland.”

Clearly, Lord Hamilton, and also the Justice Secretary, Kenny MacAskill are reluctant to use the phrase “McKenzie Friend” for some reason … could it be because the legal profession in the form of the Faculty of Advocates & Law Society of Scotland don't actually want McKenzie Friends to operate in Scotland ?

Since the publication last week of Lord Hamilton’s plans for the introduction of McKenzie Friends, many experienced McKenzie Friends, consumer groups and even solicitors have expressed reservations over what appear to be restrictive conditions being placed on McKenzie Friends in Scottish courts, while McKenzie Friends in England & Wales, as well as other international jurisdictions operate without the overly harsh conditions Lord Hamilton is seeking to impose on the Scottish version of a McKenzie Friend.

One solicitor studying the Lord President’s proposals said he felt the conditions proposed by Lord Hamilton made the McKenzie Friend system “unworkable in Scotland”.

He said : “I think we all appreciate there have to be rules by which a McKenzie Friend operates, however I feel Lord Hamilton is trying to kill any chance of people developing experience as McKenzie Friends, while also severely limiting who could act in the McKenzie Friend role.”

He continued : “It almost appears from Lord Hamilton’s proposals as if he wants to curtail anyone other than someone with a legal background from acting as a McKenzie Friend. While I’m sure the court may welcome such an idea, it may well be the party litigant wishes their spouse, partner or a professional from a field relevant to their case to be their McKenzie Friend. I therefore fear Lord Hamilton’s intentions as per his letter to the Scottish Parliament appear to be an unjust restriction on who can appear as a McKenzie Friend, noting there are less restrictive practices in English courts.”

The thorny issue of remuneration for a McKenzie Friend which Lord Hamilton appears determined to prevent, also takes a battering as case law in England has already established McKenzie Friends can charge for their services, an issue taken up HERE

McKenzie FriendsForty years to bring McKenzie Friends to Scotland indicative of law reform delays. I would remind readers, when it comes to legal reforms in Scotland, the legal establishment have a habit of putting the brakes on reforms to benefit the consumer, of which the McKenzie Friends issue is but one casualty of many inequalities between Scots Law & the rest of the UK, highlighted in an article I published last year showing delays of 19 years for reforms to small claims law in Scotland, a 17 year delay to rights of audience reforms, a 27 year delay to introducing class actions to Scots Law (still being discussed !), a 17 year delay to regulatory reform of complaints against solicitors with the introduction of the Scottish Legal Complaints Commission (now a failure), and the staggering 40 year delay in introducing McKenzie Friends to Scotland.

I think its fair to say that anyone could conclude from the incessant delays in reforming anything legal in Scotland, there is wilful obstruction on the part of the legal establishment to give Scots a fairer deal when it comes to access to justice, and to back that up, just read Lord Gill’s Civil Courts Review, which depicts Scotland’s Civil justice system as being stuck in the dark ages. Lord Gill also supports the introduction of McKenzie Friends as I reported last year, here : Scots Law 'shake up' as Lord Gill’s Civil Courts Review supports McKenzie Friends, Class Actions & wider access to justice for all

Which? ended their letter to the Scottish Parliament proposing the wider publication of the McKenzie Friend facility by the Scottish Courts Service, a most welcome proposal, as many people still report courts across Scotland are out of step after Lord Woolman’s November 2009 ruling granting the first use of a McKenzie Friend in a Scottish Civil Court action.

Which” said : “We are also keen to see the right to a McKenzie Friend well publicised, for instance on the Scottish Courts website, and litigants advised in advance that they will now have this right. Staff should also be fully informed of this change, so that they can advise litigants accordingly.“

The Lord President & Justice Secretary have so far refused to make any further comment on the issue, however some MSPs have backed calls to question Lord Hamilton’s stated plans for McKenzie Friends, when the Scottish Parliament’s Petitions Committee next hears Petition 1247


Anonymous said...

Lord Hamilton,

I think if you could you would appoint lawyers as McKenzie Friends which is a contradiction in terms.

Whether you like it or not, there is growing repudiation of you legal dictators, who can basically do what you want, unlike the rest of society. You do not even look very intelligent, and you stick your heels in, because you are master of a corrupt self regulating profession. MCKENZIE FRIEND is the title and spouses should be allowed to help each other. Your head is jammed in the 18th century when William Godwin and other dissidents set up dissenting academies. We will get our way Hamilton, 10,000 lawyers cannot keep a legal dictatorship over five million Scots.

Anonymous said...

This is all about keeping everyone except solicitors & advocates out of court simply to protect law firms business.Lord Hamilton knows the score very well because even he was once a lowly solicitor.

Anonymous said...

Yes Peter very well put about the obstructions & delays to reform of justice.

It beggars belief these same people float around congratulating themselves on jobs well done when all they really do is carve up the justice system for themselves.

Backwards at 100mph should be their call!

Anonymous said...

I was reading your earlier report on Hamilton and noticed he said he had spoken to his colleagues (made no mention of exactly who) but it struck me Lord Gill is so in-favour of McKenzie Friends,even proposing giving them a right of audience,I'm left wondering why Hamilton is so dead against the idea ?

No doubt more to come on this saga so I will keep reading your latest.

Anonymous said...

I think Lord Hamilton should get himself new advisers.He looks very protectionist & out of step over this McKenzie Friend thing.

Anonymous said...

"showing delays of 19 years for reforms to small claims law in Scotland, a 17 year delay to rights of audience reforms, a 27 year delay to introducing class actions to Scots Law (still being discussed !), a 17 year delay to regulatory reform of complaints against solicitors with the introduction of the Scottish Legal Complaints Commission (now a failure), and the staggering 40 year delay in introducing McKenzie Friends to Scotland."

Do you realise if you add all those up it comes to 120 years worth of delays.

I'd say that is enough to brand Scotland's justice system a backward banana republic dictatorship if ever there was one !

120 years.For Christ's sake ! That is outrageous

Anonymous said...

To be honest I wouldn't recommend someone take along their wife or relative as a McKenzie Friend unless it is purely to take notes or help with papers etc.
What I read into Lord Hamilton's letter is an intention to prevent or at least control party litigants bringing as their McKenzie Friend someone who might qualify as an expert witness.Now I can see that upsetting opposing counsel and with the McKenzie Friend presumably being an outsider to the legal system all sorts of objections will flow.I think that is what Hamilton has in mind so for instance if you are suing a hospital over botched plastic surgery and have a plastic surgeon as your expert witness then the hospital's legal team will be objecting to your choice or (assuming Hamilton's letter is followed in its entirety) the judge will disallow the plastic surgeon as your McKenzie Friend.

It really comes down to a person having a right to select who they want to help them in court (as we are not talking about rights of audience here,Hamilton has already said so).Surely the Parliament must make law on this and not simply leave it to the Court of Session Rules Council.I dont think they can manage it if what you have already reported is anything to go by.

Best of luck and hope you succeed although I suppose you have already done a lot on it by the looks of your previous reports !

Anonymous said...

Hamilton is doing a fine job.A fine job of making Scots Law look a right ass.

Anonymous said...

The Lord President & Justice Secretary are angels of coverup from the Law Society.

Anonymous said...

Good to see the consumer lobby speak up but where is the Scottish Consumer Council on this ?

Anonymous said...

Why is this all being left to a judge.People's rights are at stake here and the Parliament should legislate for that.If it doesn't then why have the bloody thing in the first place ?

Anonymous said...

have to agree with those saying the judge is protecting the court and not serving the people

the letter from which is just common sense and proves democracy is not present in our courts

Anonymous said...

Lord Gill did say Scotland's justice system was stuck in victorian times but he neglected to mention the victorian part of it is caused by his own colleagues such as Lord Hamilton

Peter Cherbi said...

# Anonymous @ 8.32pm

I agree. I dont think the courts can really be trusted to implement McKenzie Friends as they have operated in England & Wales for all these years.

After all, we are here now, forty years later talking about it ... that has to be an indication Scottish courts cant really be depended upon to institute positive changes on their own ...

# Anonymous @ 9.11pm

The Scottish Consumer Council, now called Consumer Focus Scotland, have made an input into the McKenzie Friend petition & debate. More to come soon I understand ...

# Anonymous @ 10.13pm

Yes, I agree ... although this petition has taken a year to go through the Petitions Committee ... and even if action was to be recommended, it would probably then be sent onto the Justice Committee, and just how long that would take ... well ...

How fortunate we are there was a case which prompted Lord Woolman to rule on the McKenzie Friends issue back in November 2009.

# Anonymous @ 11.07pm

Yes, that's a fair point.

I am certainly of the opinion Lord Gill is more in favour of reforms than others currently on the bench ...

Anonymous said...



Anonymous said...



Anonymous said...

Dr Hans Koechler UN Advisor on Human Rights and Democracy to the UN hit the nail on the head when he compared Scotland's Justice System to that of a 'banana republic' - and that is just the way Lord Hamilton, the Law Society of Scotland and their political glove puppets like it.

Anonymous said...

In the McCartney divorce case Heather Mills was assisted by no fewer than 3 McKenzie Friends, two americas - both with legal qualifications - and her sister.

Curiously there is no attempt by Lord Hamilton to justify his proposed limitations, or explain his ealier misleading comments to the Justice Committee.

These questions demand answers.

Anonymous said...

Lord Gill's Review proposals re McKenzies Friends were perfectly clear and far reaching; firstly his should be a right, secondly
McKenzie Friends should be allowed to address the Court.

Why settle for anything less, let alone the fourth rate proposal by someone apparently possessed of a tenth rate mind?

Anonymous said...

The criticisms from Which are well deserved although I think they will bounce off Hamilton as everything else seems to.
The Scottish Parliament must play their role making sure McKenzie Friends if someone wants one is a right and just like everywhere else they can have who they choose even if the Judge doesn't like the look of them.

Keep up the good work Peter

Anonymous said...

Hi Peter I noticed someone (must be a lawyer) stated the following

"Surely you cant write off an entire law firm just because of one bad apple"?

All lawyers are bad apples, evil ruthless, calculating, as dangerous as rattlesnakes. Please people of Scotland, get educated about the self regulators. Corruption is covered up, and that is why they are all bad apples. They know they are above the law, don't you lawyers.

Anonymous said...

Lord Hamilton's disgraceful attempts to obstruct progress and effectively maintain the status quo demonstrates precisely why Lord Gill's review identified the need for 'a change of culture' within the judiciary.

Anonymous said...

Clearly his lordship Hamilton & chums thought they had this one stitched up neatly

Good to see you didnt let that happen !

Anonymous said...

I bet the Law Society rue the day they didnt settle with you because Scottish lawyers are now known as sh*t across here!

Anonymous said...

Can anyone tell me just why Lord Hamilton hates to use the term "McKenzie Friend" ?

Is there some weird anti-McKenzie Friend movement among the Scottish legal profession which makes even the mention of the term punishable by death ?

Anonymous said...

Justice Secretary Jack Straw is to cut the "success fees" lawyers can charge in defamation cases to reduce "disproportionate" legal bills.

He said lawyers operating no-win, no-fee conditional fee agreements must cut their maximum charges from 100% to 10%.

Media groups say current laws stifle freedom of expression by forcing editors to avoid stories because of the risks of highly expensive libel action.

The changes will take effect in April and follow a Justice Ministry review.

Anonymous said...

Lord Hamilton,

Yes Peter you are correct, a state title is a mark of shame. It is also a mark of protection, this man will not be stripped of legal rights because he is master of the architects of injustice, like Adolf Hitler, nothing about equality here. Lord Hamilton is the Fuhrer of Scotland's Banana Republic.

Anonymous said...

Anonymous said...

Dr Hans Koechler UN Advisor on Human Rights and Democracy to the UN hit the nail on the head when he compared Scotland's Justice System to that of a 'banana republic' - and that is just the way Lord Hamilton, the Law Society of Scotland and their political glove puppets like it.

Anonymous said...

Hi Peter,

When a lawyer appears before the Scottish Solicitors Discipline Tribunal are,

The press allowed access?

Any lay persons allowed to view the proceedings, or it is just lawyers investigating a lawyer?


Anonymous said...

You make a good case about all those delays in Scotland,Peter.
I think its safe to say after reading your incredible blog the Scottish justice system is malfunctioning at best and probably fit for the dustbin as are many in it.

Anonymous said...

I think the judge should listen to the consumer lobby on this one.After all they have more experience of McKenzie Friends than Lord Hamilton,who as a Scottish judge will never have dealt with a McKenzie Friend in their entire existence until now.

btw very good blog Peter,you put the newspapers to shame by a very long margin

Anonymous said...

Dirty low life people, that is what lawyers are.

Anonymous said...

Yes may I also join in saying Peter's blog is a real eye opener against the legal profession in Scotland.Glad I dont have to use them and sorry for all you guys stuck over there having to put up with this crooked lawyer racket.

Anonymous said...

I am all for parliament having a say in this too.It shouldn't be left to one judge to decide it especially since we are talking about 40 years later and none of them bothered doing anything till now