McKenzie Friends ‘on the way’ to Scotland’s Sheriff Courts, application procedure to be ‘less formal’ than Court of Session

McKenzie Friends will soon appear to assist party litigants in Scotland’s Sheriff Courts. SHERIFF COURTS across Scotland are on the way to formalising the arrangements for unrepresented party litigants to obtain the services of a McKenzie Friend, the usually non-lawyer lay courtroom helpers which have provided invaluable assistance to thousands of party litigants in the English court system for the past forty years, after the Sheriff Court Rules Council let it be known their work on the issue is at draft stage, hopefully soon to be concluded.

A spokesman for the Sheriff Court Rules Council on being asked about the developments to bring McKenzie Friends to Scotland’s Sheriff Courts after I had reported earlier on the Sheriff Court Rules Council’s consideration of the issue, said yesterday : “I can confirm that the Sheriff Court Rules Council considered draft rules for the use of a McKenzie Friend in civil proceedings in the sheriff court at its meeting on 6 August.“

He continued : “The Council agreed with the recommendation of its working group that a different approach to that of the Court of Session was necessary namely that the procedure involved should be less formal with no certification as regards the suitability of the individual which the party litigant wishes to assist in the conduct of the proceedings being required. I should advise you also that the draft rules require some amendment so they are still under consideration by the Council.”

Lord Hamilton & Justice Secretary Kenny MacAskill were caught out by speed & widespread support of Holyrood McKenzie Friends Petition. The Sheriff Court Rules Council’s consideration of the McKenzie Friend question, follows the implementation of McKenzie Friends in Scotland’s Highest court, the Court of Session after Scotland’s Chief Judge, the Lord President, Lord Hamilton, and the Scottish Government were caught on the hop when a public petition (Petition 1247) was filed at the Scottish Parliament by Stewart MacKenzie, asking Holyrood’s Petitions Committee to address the 40 year exclusion of McKenzie Friends in Scotland’s courts. Video footage of the Scottish Parliament’s hearings on Petition 1247 can be viewed online at InjusticeTV.

Lord Gill proposed McKenzie Friends in Civil Courts review. Progress to finally bring lay assistants to Scotland’s civil courts was helped considerably by McKenzie Friends being 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. Lord Gill had also recommended a ‘super McKenzie Friend’ with a right of audience, enabling a lay assistant to address the court on behalf of party litigants, a proposal now part of the Legal Services (Scotland) Bill, which I recently reported here : McKenzie Friends from today in Court of Session, Lord Gill’s ‘super’ McKenzie Friend with rights of audience proposal goes to Holyrood

Court of Session judge Lord Woolman granted Scotland’s first civil law McKenzie Friend in late 2009. Not long after Lord Gill’s report on civil law reforms was published, a decision in what appears to be Scotland’s longest running civil claims action, now in its f o u r t e e n t h year, M.Wilson v North Lanarkshire Council & Others (A1628/01), overtook events at Holyrood and introduced Scotland’s first civil law McKenzie Friend in the Court of Session, granted by Lord Woolman, making the decision to introduce McKenzie Friends to general use in the Court of Session and lower Sheriff Courts, a formality, albeit a decision taking the best part of a year to complete.

Law Society of Scotland & Faculty of Advocates initially objected to Holyrood Petition bringing McKenzie Friends to Scottish Courts. The exclusion of McKenzie Friends from Scottish Courts has been attributed by many seasoned law reform campaigners, several politicians and even some insiders within the legal profession to the lobbying power of the Law Society of Scotland, who, along with the Faculty of Advocates, initially opposed calls to introduce the internationally acclaimed lay courtroom helper to Scotland’s courts, over fears consumers would turn to McKenzie Friends to save themselves the notoriously unjustifiably huge solicitor’s fees which are typical of even the simplest court actions in Scotland, a well known obstacle to justice which has excluded many members of the public from gaining access to Scotland’s courts over the past four decades.

However, while the legal profession have traditionally viewed themselves as the providers of access to justice to Scots, the fact is the legal profession are simply a multi billion pound business, who for many years have themselves monopolised Scots access to the court system & access to legal services, in effect, selecting who among Scotland’s population had access to justice, while excluding those who the Law Society decided should not be allowed near a court. Many know this to be true, as do many of Scotland’s highest judges. There are thousands of examples a year to support this view, with a trail of people left out in the cold by the legal profession who as a whole have little regard for the rights of individuals unless there is a huge amount of money to be made from their predicament.

Placing the interests of what is nothing more than a business above the rights of Scots to enjoy unfettered access to justice, is wholly wrong, and for this reason, many consumer groups across the UK backed the introduction of McKenzie Friends to Scotland’s courts, to increase Scottish consumer’s access to justice.

A senior official from one of Scotland’s consumer organisations today welcomed the developments from the Sheriff Court Rules Council, expressing hope the Scottish Court Service would offer written guidance in all of Scotland’s Sheriff Courts to assist members of the public on the issue, allowing informed choices to be made on using McKenzie Friends in cases which may benefit consumers & the interests of justice considerably by the use of lay assistants in many common types of cases which currently fall victim to unscrupulous solicitors who unnecessarily complicate even the simplest of Sheriff Court cases to ensure larger fees for their little input.

However, a Scottish Parliament insider said he was slightly disappointed the Sheriff Court Rules Council had not been able to proceed the matter at a faster pace, as the Petitions Committee was due to hear Petition 1247 in September and had hoped to report the availability of McKenzie Friends in all of Scotland’s courts, bringing the Committee’s consideration of the issue to a successful conclusion.

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