McKenzie Friend ‘success’ for Scotland as Court of Session Rules Council signals June 2010 implementation after 40 years of Law Society opposition

Scotland’s Lord President passes McKenzie Friends hurdle. Confirming my report earlier in February of this year on the Lord President, Lord Hamilton’s plans to formally introduce McKenzie Friends to Scotland’s courts, it has been announced the Court of Session Rules Council, the body which oversees rules regarding any matters which the Court could regulate by an ‘Act of Sederunt’, has discussed the issue of McKenzie Friends at its Monday meeting of earlier this week, and is now in the process of drawing up the rules which will allow & govern the use of McKenzie Friends in the Court of Session by the end of June 2010.

A spokeswoman for the Scottish Courts Service said yesterday : “I can confirm that the Rules Council met on Monday and agreed to draw up rules in relation to McKenzie Friends. I expect these to be drafted within a few days and I anticipate that they be be formally adopted by the end of June.”

While the Lord President's Office had no further comment to add to this statement, campaigners & consumer organisations expressed their hope the rules to be drawn up for Scots McKenzie Friends will mirror that of the guidance used in the English courts system, and not prove as restrictive as the Lord President’s initial proposals announced in February, which were criticised by consumer groups as being too strict.

An official with one of Scotland’s consumer organisations said : “I am delighted Scottish consumers will shortly have the invaluable assistance a McKenzie Friend can provide in court for those who cannot obtain or afford legal representation."

He continued : “I look forward to reading the details of the rules by which Scotland’s courts system will treat those acting as a McKenzie Friend and would hope there is a strong presumption in favour of a litigant having the right to a McKenzie Friend as is the case in England & Wales.”

Scottish Parliament asked Lord President ‘to keep them updated on McKenzie Friend law. Questions which were raised late last week over the Scottish Parliament’s Petitions Committee’s recent letter to the Lord President have now also been resolved with the release of documents from the Parliament, confirming the Committee had asked the Lord President for “an update once the Act of Sederunt has come into force”, rather than choosing to raise specific key points which came out of last Tuesday’s meeting of the Petitions Committee, namely those of remuneration of a McKenzie Friend, usage of the term “McKenzie Friend” and the involvement, or interest of a McKenzie Friend in the case in which they are assisting. The Petitions Committee indicated they would next consider the McKenzie Friend petition on 7 September 2010.

I reported on last week’s Petitions Committee discussion on Petition 1247 (McKenzie Friends for Scotland) along with video footage of the Committee’s deliberations, here : Questions over Holyrood's exchanges with Lord President as Scots McKenzie Friend law to be heard at Court of Session Rules Council meeting

The Court of Session Rules Council, who are now drafting the rules on McKenzie Friends, consists of the Lord President ex officio, two other judges of the Court of Session appointed by the Lord President, five members of the Faculty of Advocates appointed by the Faculty and five solicitors appointed by the Council of the Law Society of Scotland. Members hold office for three years and are eligible for reappointment provided that they retain the qualifications for membership.

Court of Session Rules Council Current Membership :

• The Rt. Hon. Lord Hamilton, Lord President (Chair)
  
• The Rt Hon Lord Reed
  
• The Hon. Lady Dorrian
  
• Mr. Ronnie Clancy, Q.C., Faculty of Advocates
  
• Mr. Gerry J.B. Moynihan, Q.C., Faculty of Advocates
  
• Ms. Lesley Shand, Q.C., Faculty of Advocates
  
• Mr. Eugene P. Creally, Faculty of Advocates
  
• Mr. Graeme Hawkes, Faculty of Advocates
  
• Mr. Gordon Keyden, Law Society of Scotland
  
• Mr. Robin Macpherson, Law Society of Scotland
  
• Mr. Duncan Murray, Law Society of Scotland
  
• Mr. Sydney Smith, Law Society of Scotland
  
• Mr. Fred Tyler, Law Society of Scotland

It should be noted the Faculty of Advocates & the Law Society of Scotland in written submissions to the Scottish Parliament both opposed the introduction of McKenzie Friends to Scotland’s Civil courts. You can read my coverage of the Faculty of Advocate's objections HERE and the Law Society of Scotland’s objections HERE.

However, despite both the major power blocks of the Scottish legal profession obstructing & opposing the introduction of McKenzie Friends to Scottish Civil courts, the issue seems to have cleared the Court of Session’s Rules Council, and we now have an apparent success which should benefit all Scots who require access to justice and our courts.

The draft rules are expected to be available soon, and will be published as I receive them.

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