Friday, April 23, 2010

McKenzie Friend Petition hears Lord President is ‘too protective’ of courts as Scots party litigants face more delays on court assistance reforms

Lord Hamilton judicialLord Hamilton dubbed ‘too protective’ of Scottish courts. MCKENZIE FRIENDS FOR SCOTLAND moved a little forward on the road to progress at the Scottish Parliament’s Petitions Committee earlier this week as independent MSP Margo MacDonald expressed the views of many consumer organisations & campaigners that Lord Hamilton’s plans as announced earlier in February to impose strict conditions on the appearance of McKenzie Friends (courtroom helpers who assist unrepresented party litigants by taking notes, suggestion questions to be asked, and quietly advising on court procedures, points of law) were “too protective”, ignoring the decades of English legal experience in McKenzie Friends appearing in courts south of the border.

Margo MacDonald – Lord President is being too protective and ignoring English experience on McKenzie Friends (click to view video) :

margo_macdonaldMargo MacDonald MSP. Margo MacDonald, speaking in support of Petition 1247, which aims to bring McKenzie Friends to Scotland, said : “I should put on record I have sympathy with the Lord President of the Council’s desire to try and ensure that the Scottish Courts system is as professional and as equitable as possible but I think he perhaps is too protective and he is ignoring the evidence of thirty years practice of McKenzie Friends in England & Wales McKenzie Friends in the court and I think the case is proved although its not within our own jurisdiction I don't think we would behave much differently in the situation which is what I imagine the Lord President is concerned about.”

Also, the question of a McKenzie Friend being an “absolute right” of any unrepresented court users came up for debate once more. Margo MacDonald said : “I think there should be a strong presumption of a McKenzie Friend and that should be enshrined in primary legislation. I think though that there should not be an absolute right to this and that a judge or sheriff should retain discretion to determine whether or not the normal conduct of the court is going to be hindered of harmed in any way it should be enhanced by having a McKenzie Friend there.”

Lord WoolmanLord Woolman granted Scotland’s first Civil Law McKenzie Friend. The case that broke the forty year mould on McKenzie Friends in Scotland, Martin Wilson v North Lanarkshire Council & Others saw Lord Woolman grant Scotland’s first Civil Law McKenzie Friend in the Court of Session in mid November 2009, albeit forcing the McKenzie Friend to sit behind the party litigant, Mr Wilson in one of Scotland’s longest running civil damages action cases. You can read more about this in an earlier article, here : First use of McKenzie Friend in Scotland as Court of Session sweeps aside 40 years of lawyers monopoly over public access to justice

bill_butlerBill Butler MSP (Labour). Petitions Committee member Bill Butler MSP commented : “We should write to the Lord President of the Court of Session asking for a response to the concerns raised in the submission by Which? magazine’ specifically paragraphs 4-7 the petitioner particularly points to point 1.1 & 1.2 and Consumer Focus Scotland I also think we should ask the Lord President will each of these concerns be addressed and in the forthcoming Act of Sederunt that he intends to bring forward and if not why not.”

However, progress on the issue took a slight left turn as expected, Nigel Don, attempted to talk down the already announced plans of the Lord President, Lord Hamilton to force hopeful McKenzie Friends to sign absolute certificates with strict conditions before they are even allowed to appear in a Scottish court to assist & take notes for their party litigant

nigel_donNigel Don MSP (SNP): Petitions Committee member & Parliamentary liaison to Justice Secretary Kenny MacAskill. Nigel Don, speaking on the thorny point of Lord Hamilton’s plans to impose a certificate on those appearing as a McKenzie Friend in a Scottish Court, announced in February which I reported on earlier HERE, said “I think its fair to say the certificate as I see it is not a certificate it is anything other than as I understand this is an an important place to be and I understand I am in court and there are some responsibilities of receiving information and how I conduct myself equally people seem to be suggesting the experience is a kind of textbook exercise if you have not got enough experience you cannot be there.”

In England & Wales, and most other jurisdictions where McKenzie Friends have been used in courts around the world for up to forty years, there are apparently no such requirements of the forcible signing of certificates for those wishing to appear as a McKenzie Friend, who is simply there to assist an unrepresented party litigant by taking notes, suggesting questions and giving quiet advice on court procedures or acts of law.

Sources say the Act of Sederunt, which Lord Hamilton announced in February with his intention to bring forward for May 2010 is mostly finished, and remains of the view there be strict requirements of a certificate to be signed before a party litigant can use the services of a McKenzie Friend in Scotland’s courts. Apparently drafts of the Act of Sederunt floating around show there to be no flexibility on this issue of the certificate, despite Mr Don’s less than convincing argument the certificate issue will not be an absolute …

Mr Don also appeared to support the Lord President’s apparent hang up on whether McKenzie Friends could be paid for their time in a Scottish Court. Mr Don said : “I do know that the Lord President is suggesting the lay assistant should not be paid in any way at all and it seems to me if that is a line he wants to maintain people will find a way around it and I want to make sure we bring that to his attention as well.”

Margo MacDonald interceded, commenting that it has been suggested by Consumer Focus that a simple question asked by the judge or sheriff are you being paid for this if the person ‘tells a porky’ he can be put away for perjury.

Oddly enough, Consumer Focus Scotland are against McKenzie Friends receiving payment for their services to party litigants, this despite the fact McKenzie Friends in England & Wales, and many other international jurisdictions have for years been able to charge for their services without much dispute from courts.

However, today, some who have acted as McKenzie Friends in England & Wales questioned why Lord Hamilton has such a hang up over the issue of whether a McKenzie Friend can receive remuneration for their services.

While the Scottish Parliament & consumer groups argue over whether a McKenzie Friend can or cannot receive payment for their services, apparently on the ludicrous possibility of penalty of jail time, there is now case law in the English courts family division to support the right of a McKenzie Friend to charge for their services, where Mr Justice Munby, ruling over a case of costs arising from contentious contact and residence litigation between unmarried parents [N (A Child) [2009] EWHC 2096 (Fam)] concluded the child’s father's McKenzie Friend "is entitled to charge, if he can find clients willing to pay his fees, at an hourly rate which can hardly be said to be extravagant when contrasted with the fees one frequently finds being charged to privately paying clients in family cases".

One English solicitor of 30 years experience who in his spare time has appeared as a McKenzie Friend for an unrepresented party litigant said : “Lord Hamilton’s apparent desire to send any McKenzie Friend who asks for or receives money for their services in Scotland to a firing squad at dawn seems itself to be an obstruction to the many unrepresented party litigants even being able to obtain a McKenzie Friend in the first place. I think the Lord President’s hang-up over a Scottish McKenzie Friend receiving a fee for their services is more to do with lobbying from the legal profession rather than an interest in how well the conduct of the court proceeds.”

He continued : “I think it comes down to the fact that a McKenzie Friend might end up charging £30 an hour for his services, while solicitors and full legal teams can cost anything up to £5,000 an hour in Scotland’s Court of Session. Its not rocket science to work out the Scots legal profession are worried they are going to lose a lot of revenue if clients chose the unrepresented party litigant approach to court cases and employ a much cheaper yet effective McKenzie Friend than hiring an expensive legal team which might cost a lot but not win the case anyway. As I see things, it is this factor which is the real opposition to a McKenzie Friend being paid or not, not the actual smooth running of the court.”

Lord WoolmanLord Woolman granted Scotland’s first Civil Law McKenzie Friend. The case that broke the forty year mould on McKenzie Friends in Scotland, Martin Wilson v North Lanarkshire Council & Others saw Lord Woolman grant Scotland’s first Civil Law McKenzie Friend in the Court of Session in mid November 2009, albeit forcing the McKenzie Friend to sit behind the party litigant, Mr Wilson in one of Scotland’s longest running civil damages action cases. You can read more about this in an earlier article, here : First use of McKenzie Friend in Scotland as Court of Session sweeps aside 40 years of lawyers monopoly over public access to justice

Clearly as I have thought all along, the issue of bringing McKenzie Friends to Scotland’s courts comes down to competition, and the fears of the legal profession they will lose business. Well, as far as I’m concerned, that's a good thing. If expensive legal teams are so expensive and so poor quality as we are forced to expect on a daily basis in the Scottish courts that they will often drag a case out for years, take it to all the courts in the land and achieve no success while presenting the litigant with bills for tens of thousands of pounds, then the legal profession deserve to lose the business.

The prospect of lost business for lawyers should not factor into the Lord President’s decisions on when and under what format to allow McKenzie Friends in Scotland’s courts, especially since the legal profession have been so effective at excluding McKenzie Friends from Scotland for the past forty years, simply, due to … greed.

Lord GillLord Gill supported the introduction of McKenzie Friends in his Civil Courts Review. Scotland’s Lord Justice Clerk, Lord Gill also supported the introduction of McKenzie Friends to Scotland’s Civil courts, reported on at length in his Civil Courts Review, although mentioned none of the strict conditions which the Lord President, Lord Hamilton now wishes to impose on the Scottish version of a McKenzie Friend. You can read more about Lord Gill’s Civil Courts Review here : Scots Law 'shake up' as Lord Gill’s Civil Courts Review supports McKenzie Friends, Class Actions & wider access to justice for all

The Petitions Committee decision of this week, chose the clear and thankfully sensible suggestion from Bill Butler MSP to write to the Lord President along the following lines :

  • What is your response to each of the concerns raised in the submission by Which? magazine, specifically in paragraphs 4 to 7 (PE1247/AA), the petitioner (PE1247/EE), particularly points 1.1 and 1.2 and Consumer Focus Scotland (PE1247/FF)?
  • Will each of these concerns be addressed in the forthcoming Act of Sederunt you intend to bring forward? If not, why not?

However, as has been noticed by many observers, the Lord President has already refused to answer the Petitions Committee’s earlier questions, put to the Lord President on 9 February 2010, where the Committee asked :

  • 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?

Now we must await to see whether the Lord President will this time, answer the Parliament substantively, or simply respond with plans which end up leaving more questions than answers, while also leaving the rights & entitlements of Scottish court users at a major disadvantage compared with our English colleagues …

You can read my earlier coverage of the campaign to bring McKenzie Friends to Scotland, here : McKenzie Friends for Scotland : The story so far

All written submissions for the McKenzie Friend petition at the Scottish Parliament can be read here : Written submissions for Petition 1247, McKenzie Friends for Scotland

28 comments:

Anonymous said...

Expect more smoke & mirrors from Lord Hamilton - he is a specialist.

Anonymous said...

What a surprise.It all comes down to money and lawyers fearing losing it to McKenzie Friends.

This is why the courts administration should have been taken away from judges not handed over to them as the SNP have done.

Anonymous said...

Clearly the Lord President, Mr Don and other glove puppets of the Law Society of Scotland are anxious to diminish Lord Gill's proposals which would see the Scottish Public finally allowed access to the same entitlements enjoyed by others in the UK for several decades past.

If the Lord President is allowed by Parliament to succeed this would mean that while McKenzie Friends might be available in theory their practical applictaion would be significantly reduced, while lawyers monopoly on addressing the Court - and the attendant fees - would be maintained.

Anonymous said...

Why should it not be an absolute right to have a McKenzie Friend in Scotland when it seems to be in England ?

Just what is so bloody different about Scotland that Lord Hamilton must restrict everyone's access to courts we all pay for ?

Anonymous said...

"drafts of the Act of Sederunt floating around"

That statement alone may spark Hamilton's ire !

Anonymous said...

Perhaps everyone who is not a lawyer should just vacate Scotland then we can build a huge wall around it and leave the lawyers to argue among themselves.
Wont be missed I'm sure !

Diary of Injustice said...

# Anonymous @ 13.37

Yes, more on the way from Lord Hamilton apparently even as I write this reply ...

# Anonymous @ 13.54

I agree ...

# Anonymous @ 14.16

I think the Lord President will do as he pleases, no matter what the Scottish Parliament say ... and with no backbone from Holyrood to bring Lord Hamilton to account, it seems he has the usual free hand he has become used to wielding over Scots justice ...

# Anonymous @ 14.21

What is so different about Scotland you ask ?

The answer is that the legal profession hold too much power & influence over public & political life ... with this issue of McKenzie Friends being a fairly good example of that.

What was once achieved in an English court room in 1970 in an afternoon, has taken over a year in Scotland with still no end result due to obstruction & opposition from the Scottish legal profession ...

# Anonymous @ 14.29

Too bad for him ...

Anonymous said...

"no backbone from Holyrood to bring Lord Hamilton to account"

EXACTLY.

Anonymous said...

Yet another embarrassment in the long line of embarrassments of Scottish justice.No wonder people dont trust or help the justice system any more.

Anonymous said...

What I find genuinely disturbing about this McKenzie Friend campaign is to do with the minimum attention of mainstream media attention.Notwithstanding that you have brilliantly handled the story Mr Cherbi.Your writing on this subject has given a strong indication Scotland needs massive reform to its legal system even more so than is recommended by Lord Gill.

Best of luck for your campaign.

Anonymous said...

"Now we must await to see whether the Lord President will this time, answer the Parliament substantively, or simply respond with plans which end up leaving more questions than answers, while also leaving the rights & entitlements of Scottish court users at a major disadvantage compared with our English colleagues …"

More questions I think ... along with the usual dictates because Lord Pres is nothing short of a judicial unelected dictator.

Anonymous said...

"too protective" as in protecting the profits of his legal comrades!

Anonymous said...

From farce to even greater farce.Oh well Peter at least you have been proved consistently correct.Scotland's legal mafia are unfit for purpose !

Anonymous said...

Yet again Scotland disappoints and begins to resemble one of those little fly specks in the Caribbean where you get a decent holiday while knowing the locals are subdued and treated like shit.

Anonymous said...

Just watched the video (regrettably)

Were those who spoke reading from a script or is that just my imagination ?

Very poor show really.I think your Parliament is just a bloody waste of time if this is the level of debate they achieve.

Anonymous said...

Yes Peter what is the hang up about making some money ?

After all lawyers do it all the time so why shouldn't someone else be able to charge for doing court work ?

Crooks simply protecting their monopoly is what this is.

Anonymous said...

Seems a very complicated process for as you say something which came about in England all those years ago.

Anonymous said...

Margo MacDonald – Lord President is being too protective and ignoring English experience on McKenzie Friends (click to view video) :
=====================================
Yes Peter Margo is correct. Protecting colleagues is a disease that affects all self regulators, they only see what they want to see.

Anonymous said...

So whatever the Lord President says. goes?

Whatever happeneded to democratic accountability?

Still I for one refuse to believe that all is yet lost where our banana republic's 'justice' system is concerned.

Perhaps we could sell it to the Italians?

Anonymous said...

A spineless parliament. There is no point in voting.

Anonymous said...

"Were those who spoke reading from a script or is that just my imagination ?"

After 1 year of them yapping on about this ?

scripted definitely !

Anonymous said...

I think Hamilton hates clients.

Roger Rabbit said...

A big hello to the land of politicians fraudulent expenses and duck huts !

Are any of those talking in this video clip you posted getting their end over on the expenses freebies ?

Anonymous said...

More amateur dramatics from Salmond http://news.bbc.co.uk/1/hi/uk_politics/election_2010/8642550.stm

I'm sure he wont need to raise the 50K as some slug from the legal profession will come along and help them for all their favours they get from MacAskill & friends!

Anonymous said...

How inconvenient for Hamilton and the Parliament this is being written about all over the place making them look idiots.One year later and they have achieved nothing between them for a McKenzie Friend what a useless bunch !

Anonymous said...

http://news.bbc.co.uk/1/hi/business/8642722.stm

so McKenzie Friends are not alone,Peter - just look at what happened to the Farepak victims - after all the promises from politicians and a certain lawyer who likes to appear on tv collecting cases for his mantle they only get 15p in the £ each !

Robbery !

Anonymous said...

Beware of those with titles, they got them for their corrupt ways.

Anonymous said...

SNP Protectors of Scotland's crooked lawyers. Think about this my fellow Scots. Mr Salmond cannot be trusted to run this country as he is oppressing Scots everywhere with his backscratching legal dictatorship.

The Scottish people owe the legal profession nothing Mr MacAskill. You are all beneath contempt.