Questions remain over access, costs & funding of McKenzie Friends in Scottish Courts as Rules Council minutes reveal ‘devil in the detail’

Scotland’s Lord President Lord Hamilton. As the minutes of the most recent meeting of the Court of Session Rules Council were published earlier this week, further details emerged on the discussions between members of Scotland’s judiciary & legal profession over the now confirmed introduction of McKenzie Friends, or as the Lord President prefers to call them “Lay Assistants” to Scotland’s courts. Details of the meeting included how the now signed Act of Sederunt allowing McKenzie Friends would take shape, although mention of exactly why it has taken forty years and a petition to the Scottish Parliament) to bring lay assistants to Scottish Courts was unsurprisingly avoided.

The Lord Justice Clerk, Lord Gill who recommended McKenzie Friends with a right of audience be introduced to Scotland was present at Rules Council meeting. During the Court of Session Rules Council meeting which took place on 10 May 2010, those present, Lord Hamilton & Lord Reed, Ronnie Clancy QC, Graeme Hawkes (Advocate) from the Faculty of Advocates, along with four members of the Law Society of Scotland, Gordon Keyden (Solicitor), Robin Macpherson (Solicitor), Duncan Murray (Solicitor) & Sydney Smith (Solicitor) discussed the McKenzie Friend issue, going onto acknowledge the significant alteration to lay courtroom assistance in Scottish courts had ‘been inspired’ by a public petition at the Scottish Parliament. Others present included the Lord Justice Clerk, Lord Gill (who earlier recommended McKenzie Friends be introduced to Scottish Courts via his Civil Courts Review), & Colin McKay of the Scottish Government’s Constitution, Law and Courts Directorate.

The published minutes (pdf) reflected the following discussions :

6.1 The Council considered a draft set of rules relating to “McKenzie Friends”. The Council was advised that the draft rules had been inspired by a petition which is currently being considered by the Public Petitions Committee at the Scottish Parliament. The petition urges the introduction of a facility in the Scottish courts whereby a party litigant may be assisted by a lay supporter.

6.2 The Council noted that the draft rules before it did not seek to confer any rights of audience on lay persons. It also noted that the Civil Courts Review Report had included a recommendation for the conferral of such a right. The Council was advised that it was not thought that this recommendation would be capable of implementation by rules of court without further primary legislation. However, the Council noted that it was understood that this recommendation was under consideration for early implementation by the Scottish Government.

6.3 In relation to the provision of lay assistance to party litigants through means other than addressing the court, the Council noted the terms of correspondence between the Public Petitions Committee and the Lord President. It was noted that the Lord President had invited Lord Reed and Lord Hodge, as judges with responsibility for administration of Court of Session business, to consider the matter and make recommendations. Following on from recommendations made by Lord Reed and Lord Hodge, the Lord President had agreed that it would be appropriate to make an Act of Sederunt amending the rules in certain respects to acknowledge and regulate lay assistance. The draft provisions before the Council sought to achieve this.

6.4 The Council noted that the Public Petitions Committee at the Scottish Parliament had indicated that it was content for the Lord President to proceed to make the court rules on this matter. It was noted that the latest draft of the rules had been adjusted to take into account points that had been recently been raised by the Committee in correspondence.

6.5 The Council discussed the extent to which the provisions should be included in the body of the rules or by declaration in a form. It also discussed the extent to which the draft rules would discourage or prevent the provision of lay assistance by persons who might be unsuitable for the role. It was agreed that the Private Office would consider the Council’s discussions on these matters in finalising the Chapter which is to be inserted into the Rules.

I reported on the above meeting in an earlier article, published here : McKenzie Friend ‘success’ for Scotland as Court of Session Rules Council signals June 2010 implementation after 40 years of Law Society opposition and you can read more on the rules in the Act of Sederunt, which resulted from the Court of Session Rules Council meeting in a further article here : McKenzie Friend ‘Act of Sederunt’ published, Lord President enforces strict conditions, calls Scots non-lawyer courtroom helpers “Lay Assistants”

For further reference, readers should also consider Scotland’s First McKenzie Friend in a Civil Court, granted by Lord Woolman in M.Wilson v North Lanarkshire Council & Others (Case ref : A1628/01) which I reported on here : First use of McKenzie Friend in Scotland as Court of Session sweeps aside 40 years of lawyers monopoly over public access to justice

While the Act of Sederunt on ‘Lay Assistants’ is due to come into force around 15 June 2010, according to legal insiders, there are still many questions remaining over what will happen if McKenzie Friends are refused, and particularly in which types of cases McKenzie Friends, or “Lay Assistants” may be refused, together with what rights of appeal party litigants will have over a judge’s decision to refuse the use of a McKenzie Friend, or “Lay Assistant”.

A solicitor said this afternoon there should be a properly laid down procedure for right of appeal if a litigant’s request for a lay assistant is refused, as not having one will inevitably tie up court time and confuse party litigants even further.

It has also emerged today that the cost of applying for a McKenzie Friend (Lay Assistant) in a Scottish court could be at least £45, being the price of a motion in the Court of Session. However, according to litigants with cases already in the Court of Session, party litigants may well be looking at about £100 (including the motion fee) if travelling to & from the Court of Session in Edinburgh is required, with additional costs of another £150 up to as much as £750 if a party litigant is required to pay the other sides costs, depending on how long the hearing lasts.

An official with one of Scotland’s Consumer organisations expressed her fears the costs of McKenzie Friend applications may be an obstruction to unrepresented litigants obtaining the necessary help in Scotland’s Civil Courts.

The official said : “Given the use of a McKenzie Friend would greatly speed up the court process in cases where the party litigant is often unrepresented due to a lack of funds and therefore an inability to obtain legal representation, I believe there should be a review of the charges on lay assistance, to encourage the wider use of McKenzie Friends in Scotland’s courts.

She continued : “However, if the report of £45 is accurate, I think the Scottish Court Service could do some good by halving this figure at least, to lessen the burden on party litigants who are already struggling in civil court cases which could be progressed much faster if a McKenzie Friend were there to help.”

While the issue of the cost of applying for a McKenzie Friend in Scotland has been raised, there also remains the thorny issues of McKenzie Friends or ‘Lay Assistants’ in Scotland being allowed to charge for their services, a right which is supported by case law in England & Wales.

While the Lord President has been adamant in his Act of Sederunt that McKenzie Friends or “Lay Assistants” cannot charge for their services, legal insiders have condemned Lord Hamilton’s proposals on the remuneration question as “unenforceable”, with MSPs raising the issue in the Scottish Parliament, particularly given the terms of the non-remuneration policy, which may incur significant disadvantages, to the point of exclusion, of any lay assistants who may be employed by a Non Governmental Organisation or a Charity.

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