McKenzie Friends from today in Court of Session, Lord Gill’s ‘super’ McKenzie Friend with rights of audience proposal goes to Holyrood

McKenzie Friends made official in Court of Session by Lord Hamilton. McKenzie Friends are officially available to all Scots court users & party litigants in the Court of Session as of today, 15 June 2010, after Lord Hamilton’s Act of Sederunt announced earlier in February of this year finally took effect, allowing anyone who cannot obtain legal representation for litigation which demands a place in Scotland’s highest court, to file a motion requesting the services of a McKenzie Friend to assist their case.

McKenzie friends as we are all probably now well aware of, are lay individuals who assist party litigants in court, for example by providing moral support, helping with court documents, or giving discrete advice. The Lord President has now clarified the situation in the Court of Session through an Act of Sederunt which comes into force today. Lord Hamilton has also notified the Sheriff Court Rules Council which will consider the matter at its meeting tomorrow, 16 June 2010. This will include an acknowledgement that lay assistance to party litigants is possible; a description of what form this assistance can take; and a presumption in favour of allowing a party litigant to have such a lay assistant.

A McKenzie Friend’s friend – unswerving support from Margo MacDonald MSP helped bring McKenzie Friends to Scotland’s Courts. The success of the campaign to bring McKenzie Friends to Scotland, kicked off by Petition 1247 filed by Stewart MacKenzie at the Scottish Parliament's Petitions Committee, and supported by several law reform campaigners & groups, consumer organisations such as Consumer Focus Scotland & Which?, included key support from MSPs such as Margo MacDonald & David Whitton, and even support from the original McKenzie Friend himself, Australian Barrister Ian Hanger QC, all backed up by developments during November 2009 which saw Scotland’s first civil law McKenzie Friend allowed in the Court of Session by Lord Woolman during M.Wilson v North Lanarkshire Council & others (A1628/01), was hailed today by Scottish Parliament insiders as a collective effort showing the system of public petitions had worked well, helping to bring in a reform which had also been recommended by Scotland’s Lord Justice Clerk, Lord Gill who had spent considerable time on the issue of lay representation as part of the two year Civil Courts Review.

Whilst I would characterise the year long campaign to bring McKenzie Friends to Scotland as being more of a struggle between the Lord President, the Scottish Parliament, the Scottish Government and supporters, there is no doubt a reform which featured heavily in Lord Gill’s Civil Courts Review has made it to existence much sooner than if things had been left to the courts system itself to allow. After all, Scotland has been without McKenzie Friends for forty years, an omission no one is yet willing to explain substantively, and apparently an issue the Petitions Committee feels it cannot seek answers to.

Application for a McKenzie Friend in the Court of Session will cost £45. There are also some questions remaining over access, costs & funding of McKenzie Friends in Scottish Courts after the Court of Session Rules Council minutes revealed some ‘devil in the detail’, most notably on fees(proposed by the Lord President to stand at £45 per motion for a McKenzie Friend), which have been sharply criticised by some as party litigants are often unrepresented and have been put in a position of being a party litigant more because they cannot afford the expensive legal services of Scotland’s legal profession rather than the constant argument from the Law Society of Scotland that their cases are not worthy of courtroom attention. Given the costs of travel to the Court of Session and other associated costs, it is hoped the £45 fee may be looked at in a sympathetic light as applications for McKenzie Friends being to reach the Court of Session.

While Scots will be stuck with the £45 fee for the time being, fees for applications of McKenzie Friends/lay assistance in the English family courts (pdf) apparently stand at £175, using the Application Form C2 (pdf). However, party litigants have been able to circumvent the fees by writing to the judge enclosing the CV of their intended McKenzie Friend, according to individuals well experienced in the McKenzie Friend process in the English courts.

The Scottish Government have lodged a promised amendment to the Legal Services Bill proposing McKenzie Friends with a right to address the court. While questions remaining over the use of McKenzie Friends (Lay Assistants) in Scotland’s Sheriff Courts will be answered at tomorrow’s Sheriff Court Rules Council meeting, chaired by Lord Hamilton himself, another benefit has emerged from the successful introduction of McKenzie Friends to Scotland’s Court of Session .. in the form of a recent amendment lodged by the Scottish Government to the Legal Services Bill, which proposes to allow Lord Gill’s Civil Courts Review recommendation of a ‘super’ McKenzie Friend with a right of audience, who will be able to address the court as well as assist their party litigant with all the other tasks associated with a McKenzie Friend up to now.

A Scottish Government spokeswoman said: "We have lodged amendments to the Legal Services (Scotland) Bill to allow provision for lay representatives, who do not have a right of audience, to address the court on behalf of a party litigant, in certain circumstances."

“In the report of the Scottish Civil Courts Review ("SCCR"), it was noted that “there may be exceptional circumstances in which it would be appropriate to permit a McKenzie friend to assist a party litigant and, with the court’s permission, to address the court". It went on to recommend that "a person without a right of audience should be entitled to address the court on behalf of a party litigant, but only in circumstances where the court considers that such representation would help it". We intend to implement this recommendation, so this will be the first recommendation of the SCCR, requiring primary legislation, to be implemented.”

So, compliments to the Scottish Government on this one … the first recommendation of Lord Gill’s Civil Courts Review to hit the streets in a usable form for court users in Scotland’s civil justice system. Lets have more please, including the reforms suggested by Lord Gill on Class Actions and also digital recordings in court which many would welcome being implemented in the present rather than far in the future.

I reported on the issue of transcripts of proceedings in Scotland’s courts in an earlier article here : Scottish court users advised to 'take along a note taker' as omissions in civil court transcripts jeopardise consumers access to justice and clearly Lord Gill feels the matter of digital recording facilities in Scotland’s courts would assist the interests of justice, confirmed to me by many litigants involved in civil actions where the events which took place in court are often omitted from interlocutors and later references made by opposing legal teams.

Lord Gill recommends digital recordings of all civil court evidence. The extent of problems with court transcripts and recordings, was referred to in Chapter 6 of Lord Gill’s Civil Courts Review, where the Lord Justice Clerk stated : “Currently where evidence is recorded in civil cases this is done manually by a shorthand writer. In our view it would be more efficient to record digitally all evidence in civil cases, as happens in criminal cases. The cost of this should be borne by the SCS. The availability of digital recording facilities in all courtrooms would contribute to more flexible usage of accommodation. We understand, however, that to equip a court fully for digital recording could cost up to £15,000. That may be prohibitive in smaller courts. Mobile facilities could be made available in those courts when required. If parties required a transcript of the evidence a charge would be made for this service. In many instances a recording of the evidence would be all that would be required.”

Clearly problems do exist with transcripts of courtroom activity, which as Lord Gill concludes himself, would easily be curtailed by the digital recording of all evidence in civil cases. You can download Lord Gill’s Civil Courts Review at the following links : Civil Courts Review

Volume 1 Chapter 1 - 9 (Covers McKenzie Friends, procedures, use of information technology in courts, advice etc, 2.99Mb)

Volume 2 Chapter 10 - 15 (Covers mainly the issue of Class (multi party) actions etc, 2.16Mb)

Synopsis (215Kb)

How about it Mr Ewing ? It wouldn’t take much to produce an additional amendment to the Legal Services Bill putting forward Lord Gill’s recommendation on recordings of all civil court cases. Given the terms of the Civil Courts Review and Lord Gill’s proposals, I’m sure the Scottish Parliament would support such a move, which would be welcomed by many …

While there is still some work to do on McKenzie Friends in Scotland, to ensure Scots have the same entitlements as our English cousins, I would like to thank all involved who have cooperated in my series of reports on McKenzie Friends over the past year, thanks going especially to the original McKenzie Friend, QC Ian Hanger, MSPs such as Margo MaDonald and David Whitton, and the many officials from the Scottish Court Service, Scottish Government Scottish Parliament and others who have spoken out when it counted, or given statements to complete my coverage.

Also, and not least, my thanks go to all those unrepresented party litigants who have told me of their stories, all of whom have endured a considerable denial of their access to justice over the years in Scotland, simply because their cases were either too controversial or involved parts of the establishment which the legal profession were too close to. I hope through my reporting on the petition and the campaign to bring McKenzie Friends to Scotland, I have given you all a voice and a chance of access to justice, denied to you for too long ...

The Petitions Committee of the Scottish Parliament will again discuss Petition 1247 later in the summer.

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