Thursday, May 27, 2010

McKenzie Friend ‘Act of Sederunt’ published, Lord President enforces strict conditions, calls Scots non-lawyer courtroom helpers “Lay Assistants”

Lord Hamilton judicialScotland’s Lord President Lord Hamilton. The rules governing the use of McKenzie Friends in Scotland’s courts, which are set to come into force by the end of June of this year, have finally been published on the Office of Public Sector Information website, confirming that for the first time in Scotland, some four decades after McKenzie Friends came into existence in the now famous English court case McKenzie v McKenzie (1970), the internationally acclaimed non-lawyer courtroom helper will finally be available to unrepresented party litigants in Scottish civil courts.

However, while the Act of Sederunt, signed last Tuesday by the Lord President will finally allow McKenzie Friends to be used in Scotland, the terms of the Lord President’s language in the guidance have confirmed the fears of many that the usage of the internationally acclaimed non-lawyer courtroom helper will be subject to strict conditions & restrictions in Scottish courts, apparently after demands from representatives of the Law Society of Scotland & Faculty of Advocates to limit the spread & availability of McKenzie Friends in civil law cases.

Scotland’s legal establishment are thought to have intervened against the full implementation of McKenzie Friends out of fear that law firms would lose business to the much cheaper, and sometimes free non-lawyer McKenzie Friend, or as the Lord President prefers to use in Scotland a “Lay Assistant”, after Lord Hamilton claimed Scots were too ignorant to understand the meaning of the term “McKenzie Friend”.

It has emerged from the published guidance the Lord President intends to forbid McKenzie Friends in Scotland from receiving any payment for their service, this despite the fact that case law exists in England & Wales, allowing a McKenzie Friend to receive remuneration for their services. This issue had come in for severe criticism by campaigners, consumer organisations, experienced McKenzie Friends from English courts, and even MSPs at the Scottish Parliament, where recently, the SNP’s MSP Nigel Don (North East Scotland) criticised Lord Hamilton’s protectionist block on McKenzie Friends receiving payment for their services.

nigel_donNigel Don MSP criticised Lord President over ‘non-payment’ of Scottish McKenzie Friends. As I reported in an earlier article on the latest Petitions Committee debate of the McKenzie Friend petition, Committee member Nigel Don criticised Lord Hamilton’s restrictions over paying McKenzie Friends, saying : “… the Lord President's letter of 19 February states immediately thereafter that the McKenzie friend—or lay assistant, as we should perhaps now describe him—is "to receive no remuneration for his or her services in any form.I can quite understand why the Lord President should take that view, but there is good reason to believe that that might not be the best view.”

Mr Don continued : “Given that many of those who might act as lay assistants might be paid by a charity such as a citizens advice bureau to help those who need help, it seems a step too far to assert that the lay assistant should receive no remuneration from anywhere. I can well understand that the Lord President and his colleagues do not want, as it were, second-class lawyers hawking themselves around as McKenzie friends, but I am slightly concerned that the suggested rules go a bit too far.”

During the same Petitions Committee hearing, another thorny issue arose, over the Lord President’s apparent hostility to using the term “McKenzie Friend” in Scottish Courts, which has resulted in Lord Hamilton’s published rules using the term “Lay Assistant” instead of “McKenzie Friend”.

nanette_milneNanette Milne MSP (Scottish Conservative) Nanette Milne, the Conservative MSP member of the Petitions Committee criticised the Lord President’s refusal to use the term McKenzie Friend in Scotland, instead preferring to apply the term “Lay Assistant. Nanette Milne said : “In addition, the petitioner obviously still has concerns about the terminology of "lay assistant" rather than "McKenzie friend". Given that Which? magazine and Consumer Focus appear to use only the term "McKenzie friend", can we perhaps press for the retention of that term ?”

A third, even more restrictive condition has also made its way to the published Act of Sederunt which has already resulted in significant criticism from consumer groups, that of requiring a potential McKenzie Friend, or “Lay Assistant” to sign a certificate and give details about themselves which are generally not required in most other jurisdictions where McKenzie Friends operate.

Chapter 12A Lay Support for Party LitigantsLord Hamilton’s Act of Sederunt – Overly restrictive and forty years too late. The terms of the Act of Sederunt, allowing McKenzie Friends to operate in Scotland’s Court of Session are as follows : 12A.1.—(1) At any time during proceedings a party litigant may apply to the court for permission to have a named individual assist the litigant in the conduct of the proceedings by sitting beside or behind (as the litigant chooses) the litigant at hearings in court or in chambers and doing such of the following for the litigant as he or she requires—

(a) providing moral support;
(b) helping to manage the court documents and other papers;
(c) taking notes of the proceedings;
(d) quietly advising on—
(i) points of law and procedure;
(ii) issues which the litigant might wish to raise with the court;
(iii) questions which the litigant might wish to ask witnesses.

(2) It is a condition of such permission that the named individual does not receive from the litigant, whether directly or indirectly, any remuneration for his or her assistance.

(3) The court may refuse an application under paragraph (1) only if—

(a) it is of the opinion that the named individual is an unsuitable person to act in that capacity (whether generally or in the proceedings concerned); or

(b) it is of the opinion that it would be contrary to the efficient administration of justice to grant it.

(4) An application under paragraph (1) is to be made by motion and accompanied by a document, signed by the litigant and the named individual, in Form 12.A-A.

(5) Permission granted under paragraph (1) endures until the proceedings finish or it is withdrawn under paragraph (6); but it is not effective during any period when the litigant is represented.

(6) The court may, of its own accord or on the motion of a party to the proceedings, withdraw permission granted under paragraph (1); but it must first be of the opinion that it would be contrary to the efficient administration of justice for the permission to continue.

(7) Where permission has been granted under paragraph (1), the litigant may—

(a) show the named individual any document (including a court document); or

(b) impart to the named individual any information, which is in his or her possession in connection with the proceedings without being taken to contravene any prohibition or restriction on the disclosure of the document or the information; but the named individual is then to be taken to be subject to any such prohibition or restriction as if he or she were the litigant.

(8) Any expenses incurred by the litigant as a result of the support of an individual under paragraph (1) are not recoverable expenses in the proceedings.”.

Act of Sederunt proposal for McKenzie Friend certificateLord President’s proposed certificate to be signed by McKenzie Friends - “Too Protective”. A Scottish Parliament source said that members were unhappy with the tone of the Act of Sederunt, considering the amount of meetings the Petitions Committee had devoted to the McKenzie Friend Petition. Among the questions asked on the certificate are payment, relationship to the applicant, legal experience, and confidentiality : “Does the named individual have relevant experience (e.g. acted as authorised lay representative in the sheriff court, acted as a McKenzie Friend in England and Wales, legal qualification, experience as a lay adviser on legal matters)? If so, please briefly describe that experience.”

Those wishing to apply to the court to assist a party litigant as a McKenzie Friend in Scotland must also declare whether they are related or not to the litigant, or whether they have a financial interest in the outcome of the case, also confirming they are not receiving remuneration from the litigant, directly or indirectly, for their assistance and will not receive any such remuneration. Additionally, they must accept that documents and information are provided to them by the litigant on a confidential basis and undertake to keep them confidential.

One Holyrood MSP dubbed Lord Hamilton’s plans “Too protective of the courts system and designed to put members of the public at a disadvantage when using a McKenzie Friend against experienced legal teams.” He went onto criticise the focus on ensuring a McKenzie Friend received no payment , saying “it looked like the legal profession had played their hand to protect their business interests.”

A senior official with one of Scotland’s consumer organisations said the plan to force the signing of certificates would put many people off being a McKenzie Friend and queried whether this was the intention all along. The official said : “This requirement of a certificate will limit McKenzie Friends from developing into a service which Scots consumers could use or rely on where they cannot secure often costly legal representation. There’s no reason why Scots court users shouldn’t have the same exact rights for a McKenzie Friend as are used in England. This proposal should be dropped.”

An experienced litigant condemned Lord Hamilton’s restrictions over Scottish McKenzie Friends, saying : “It is absurd to require a person to give details of any previous legal experience, qualifications or family relationships, and I see that Lord Hamilton is still insisting - regardless of existing case law - that no payment (not even expenses) can be claimed. I hope and expect that the Justice Committee will be pushed to see the necessary amendments included.”

It was indicated today Lord Hamilton’s Act of Sederunt will not be the final word on bringing McKenzie Friends to Scotland, as the Petitions Committee have indicated they will look again at the issue later in the year, and there are still plans by the Scottish Government to bring an Amendment to their beleaguered Legal Services Bill at its Stage Two hearing at the Scottish Parliament.

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

18 comments:

  1. So in actual fact the Lord President took no notice of the Parliament.Typical!

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  2. If as Lord Hamilton previously stated McKenzie Friends had always been available in Scotland, why the need for an Act of Sederunt now?

    Hopefully the petitioner Stewart McKenzie will write again to the Committee and insist that they call Lord Hamilton to explain this contradiction and;

    - his stubborn attachment to the
    term 'lay assistant',

    - the proposed denial of any
    payment (even expenses) thereby
    willfully disregarding
    established caselaw,

    - seek to amend the nonsense about
    an applicant's need to list
    their 'relevant experience' and
    any family relationship to the
    party.

    - ask why points raised by two
    committee members at the last
    hearing for Lord Hamilton's
    attention apparently never
    reached him.

    All in all another unsuccessful face-saving attempt by Scotland's Judiciary, made worse by the interference of the Law Society and the Faculty of Advocates.

    What's new?

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  3. Clearly not a success by any measure with all these "conditions" attached.

    The wording of the "Application by party litigant for lay support" is laughable.It reads like the court wants to ban McKenzie Friends before they come through the door.

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  4. Seems a lot of trouble for nothing.What is your next move on this Peter ??

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  5. “It is absurd to require a person to give details of any previous legal experience, qualifications or family relationships, and I see that Lord Hamilton is still insisting - regardless of existing case law - that no payment (not even expenses) can be claimed. I hope and expect that the Justice Committee will be pushed to see the necessary amendments included.”

    WELL SAID !!!

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  6. Who is going to be a McKenzie friend if they cannot even claim expenses. This man is highlighting yet again that lawyers look after each other and they care not one jot about anything but money.

    He has to implementing McKenzie friends due to massive pressure so now he is using his power to demotivate people becoming McKenzie friends. If a newspaper would publish a letter from me I would call Hamilton a criminal in public, my last letter was not published. Dissent must be proportional to power, Hamilton is a disgrace and typical of the rats in wigs who think the legal system and the public are theirs to abuse for profit.

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  7. I have a stubborn attachment to the word dictator regarding Hamilton, a prejudiced twit hell bent on protecting his subordinates income.

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  8. Another fine mess - courtesy of the vested interests of the Law Society of Scotland and the Faculty of Advocates.

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  9. Good expose as always Peter.This proves yet again Scotland is useless as a reliable jurisdiction for litigation of any kind.

    Move south ?

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  10. It seems very odd to me that something this big affecting our rights in court is left to a judge to decide.

    Why do we bother having the Scottish Parliament if they are not prepared to make the laws like McKenzie Friend ?

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  11. It has emerged from the published guidance the Lord President intends to forbid McKenzie Friends in Scotland from receiving any payment for their service, this despite the fact that case law exists in England & Wales, allowing a McKenzie Friend to receive remuneration for their services.
    -----------------------------------
    A matter for the European Court of justice, blind prejudice from Hamilton the Legal despot of Scotland. You are a biased corrupt man Hamilton.

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  12. You will never pull the carpet from under the feet of lawyers will you Hamilton?

    A legal system that is driven by the protection of lawyers is illegitimate. You will not get away with this Hamilton, titles are a mark of shame, you are proof of that.

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  13. Mr Don continued : “Given that many of those who might act as lay assistants might be paid by a charity such as a citizens advice bureau to help those who need help, it seems a step too far to assert that the lay assistant should receive no remuneration from anywhere. I can well understand that the Lord President and his colleagues do not want, as it were, second-class lawyers hawking themselves around as McKenzie friends, but I am slightly concerned that the suggested rules go a bit too far.”


    Well said Mr Don, but I would rather have a McKenzie friend to help me than one of the bastards from Hamilton's club. People of Scotland do not trust these lawyers because they stick together and leave people with no access to justice. They are as far from justice as is possible. A lawyer once told me "the legal system is not for exposing lawyers". Ask yourselves when you have ever known a lawyer to sue another lawyer for a client? They are corrupt through and through and so is Hamilton. I would like to know how many skeletons he has in his Law Society archives?

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  14. It is now for Margo Macdonald, Nigel Don et al to return to Lord Hamilton and keep him to his promise to keep the matter under review and amend it as necessary.

    Watch this space.............

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  15. As I've said before incidents such as this accumulate & amount to judicial dictatorship when judges select who can or cant have access to justice just because they cant get the services of a lawyer.

    How much is Lord Hamilton earning ? Its about £200,000 plus a year.I earn about £14,500 and cant afford one of his legal colleagues to come in and mess up my life so we need to take the management of the courts away from the judges and leave them to make the decisions in cases only which is how it should be.

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  16. This was never going to be allowed 'as-is' from the English side no matter how hard you all tried.Anyway its good to see you keeping them on their toes.I dare say Lord Hamilton will be sick of the attention now!

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  17. BBC NEWS 28th May 2010

    Killer solicitor's 'act of evil'

    John Cort
    Cort's clients' accounts were missing £650,000, the court heard

    When Vina Patel confided that her business partner had "badgered her" into doubling their firm's life insurance policy, her husband Surendra felt something was wrong.

    But he could never have imagined that his wife would be killed by a hitman hired by her friend and colleague John Cort, who needed the £1.5m business protection pay-out to pay off debts run up to fund his "extravagant lifestyle".

    "I find myself very, very angry that someone can do such a thing to such a nice person for money," Mr Patel said.

    He and the couple's daughter Anisha found 51-year-old Mrs Patel's body at the foot of the staircase at Cort and Co solicitors in Blackbird Road, Leicester, in January 2009.


    What she must have suffered in her last moments... that's very haunting
    Surendra Patel

    Pair guilty of killing solicitor

    Mr Patel said: "It's horrific, an act of evil.

    "I saw the lights were on and the doorbell wasn't answered, and I felt something was wrong.

    "What's horrifying since we learned it wasn't just an accidental fall, is what she must have suffered in her last moments, and that's very haunting."

    Jurors were told Mrs Patel had either fallen down the stairs as she was attacked, or killed elsewhere and her body arranged to make it look like an accident.

    When Cort was arrested for the murder, Mr Patel said the pieces of the jigsaw slotted into place.

    "We knew he was running out of money, we knew he was taking money here and there," he said.

    "I told Vina it was disturbing me a bit that he'd doubled the [life insurance] policy, but she said 'John's been badgering me for a while to do this'."

    The life insurance policy had been taken out by Cort and Mrs Patel who ran the firm together, to protect the business in case of the death of either partner.

    Other victims

    Cort's other victims were the clients he was stealing money from to pay off his debts.

    John Oates, from Leicester, had £150,000 taken by Cort after the sale of his mother's house.

    He said: "He's a disgrace to himself and the profession."

    Vina Patel
    Vina Patel was a partner in a Leicester firm of solicitors

    Revelations which came out during the trial have shocked colleagues, including fellow Leicester solicitor Noel Walsh, who described Cort as appearing "a very traditional, upstanding, very well dressed and spoken solicitor, someone you would trust".

    He said: "I was staggered as more evidence came out.

    "In all the business dealings I had with him he was very professional and so was his partner Vina."

    During the trial the court heard Cort was heavily in debt due to his lifestyle, which included renting flats for girlfriends.

    He hired Brian Farrell, a male escort who claimed the pair were in a sexual relationship, to carry out the murder, the court heard.

    Mr Patel said: "He's destroyed our family. Vina was the glue, she was the laughter of the house, with her around we didn't have to worry about anything.

    "I miss her every second of the day."

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  18. The lawyer's mistake in the murder case was to pick on one of his own, as has been shown on numerous occasions the lives of clients don't count as far as the Courts are concerned.

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