Questions raised over Lord President’s 'draconian' conditions for Scottish McKenzie Friends as English courts reveal guidance 'not obligatory'

Scotland’s Lord President, Lord Hamilton. QUESTIONS are being raised over the ‘draconian’ conditions Scotland’s Chief judge, Lord Hamilton, wishes to impose on the use of McKenzie Friends in Scottish civil courts, after it was revealed today by the English Courts system, their own guidance on the usage of McKenzie Friends comes nowhere near the severity of Lord Hamilton’s requirements as noted in his recently released plans to impose harsh qualifications on anyone wishing to assist an unrepresented party litigant as a McKenzie Friend in a Scottish court.

HMCS (Courts service for England & Wales) reveal McKenzie Friend guidance is informal in England & Wales. The Scottish Courts Service equivalent in England & Wales, Her Majesty’s Courts Service, revealed in a reply to Mr Stewart McKenzie, the McKenzie Friend petitioner that the guidance issued by the President of the Family Division Courts was only informal, and had no actual force of the Rules of Court : “Although the terms of McKenzie friends in England and Wales must be determined by the terms of the ‘President’s Guidance’, it is merely guidance. The Guidance has no force of the Rules of Court. It is neither in the Civil Procedure Rules nor a Practice Direction. It merely sets the principles as defined by case law. Neither the McKenzie Friend nor the Court has to comply with the guidance.”

The response from the English courts service contrasts stunningly with the ‘draconian’ plans of Lord Hamiltion, which I reported in an earlier article, here Exclusive : McKenzie Friends for Scotland ‘are go’ as Lord President yields to Holyrood access to justice petition for Scots court users. While the English courts have found themselves able to work, informally, within their own guidance on the use of McKenzie Friends in England & Wales as laid down in the Family Courts, Lord Hamilton plans to force Scottish McKenzie Friends to sign certificates before the court will even consider allowing them in to assist an unrepresented party litigant.

Lord Hamilton’s letter to the Scottish Parliament imposes ‘draconian’ requirements on Scottish McKenzie Friends. The focus of the debate in Scotland is now on Lord Hamilton’s plans, taken from his recent letter to the Scottish Parliament which, on the pretext of ‘regulating' McKenzie Friends appearing in a Scottish court, state : “To enable the court to police the behaviour of a lay assistant and, in an extreme case, to exercise a sanction against him or her, the party litigant and the intended lay assistant should complete and sign a certificate to be lodged in process with the motion. The certificate should (i) state the name and address of the intended lay assistant; (ii) give a brief summary of the lay assistant’s relevant experience and state whether he or she is related to the party litigant; (iii) confirm that the lay assistant has no interest in the case and is to receive no remuneration for his or her services in any form; and (iv) state the lay assistant’s understanding of the duty of confidentiality and his or her undertaking not to use any documents recovered in the process for any purpose other than the litigation. There would be an appropriate form containing the undertaking with boxes to be completed.”

A political insider at Holyrood today commented on the sharp difference of practice on McKenzie Friends revealed by the English courts service saying he believed the Lord President would have to water down his proposals to fit in with the rest of the country.

He said : “Given the clear indication from the English courts the guidance which applies to McKenzie Friends is not a binding, nor formal process in terms of the rules of the court in England & Wales, I fail to see how the Lord President can enforce such unfair and draconian requirements on those wishing to serve as McKenzie Friends in a Scottish court. This is clearly an inequitable situation for Scots.”

A solicitor in favour of allowing McKenzie Friends in Scotland commented : “The court is hardly effective at policing members of the legal profession who regularly appear in court, and they are supposedly bound not only by the rules of the court but also their professional conduct & service requirements.

He continued : "I don't see why the court should be invoking a regulatory role of sorts on McKenzie Friends if they cannot even keep a tight reign on solicitors or advocates, especially with regard to recent reports of abuses of the court process by members of the legal profession in both civil & criminal cases.”

A senior official from one of Scotland’s consumer organisations also commented on the HMCS letter to the petitioner, claiming Scots were being left far behind their English counterparts on the McKenzie Friend issue simply because the Scottish legal profession were ‘too used to owning courtroom presence’.

He said : “It is very clear from the response received from HMCS that McKenzie Friends enjoy a more informal, yet effective existence in England & Wales. Given McKenzie Friends have operated in the rest of the country for many years under this system, we would like to see similarly informal, yet effective standards applied in Scotland, with full respect to the same rights & protections which are available to court users & consumers in England & Wales.”

He continued : “ I am sure most of us are under no illusions the legal profession in Scotland simply do not want competition in the court process as they have become too used to owning courtroom presence. However, in the light of the revelations from HMCS, I trust the Scottish Parliament will swiftly undertake discussion on this matter with the Lord President and hopefully persuade him to amend his overly restrictive approach to Scottish McKenzie Friends.”

UK Consumer organisation Which? also questioned Lord Hamilton’s plans. Lord Hamilton’s plans for McKenzie Friends have also come in for criticism from Which?, recently stating 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.”

You can read more on the letter from Which? in earlier coverage, here : Consumer legal chiefs question Lord Hamilton’s plans for McKenzie Friends as calls grow for fairer deal for Scots court users

The Scottish Parliament during its last hearing on the McKenzie Friend Petition, had resolved to ‘put on hold’ any further discussion on matters until its May hearing, but in the light of the new developments of the HMCS response, consideration of the content and further responses expected to Holyrood in the next few days, along with written representations from MSPs who have also raised questions over Lord Hamilton’s plans, has caused the Petitions Committee to bring forward further debate on the McKenzie Friend petition to its meeting on the 20th April 2010.

To view my earlier coverage of the campaign to bring McKenzie Friends to Scotland, click here : Bringing McKenzie Friends to Scotland's Courts - The story so far