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

Lord 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 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 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 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 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 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 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