Access to justice improved : McKenzie Friends advice now included in guide for Court of Session’s party litigants

Scottish Court Service offer guidance on McKenzie Friends. After a year of the Scottish Parliament considering the McKenzie Friend question for Scotland, in the form of Petition 1247, assisted by a ruling in the Court of Session last November, the Scottish Court Service have now updated their GUIDE FOR PARTY LITIGANTS “Raising & Defending ordinary actions in the Court of Session” (pdf) with details on how people who are conducting their own litigation (party litigants) can apply for “lay assistance”, (otherwise known as ”McKenzie Friends” in the rest of the world) to accompany them and offer help in proceedings in Scotland’s highest court, the Court of Session.

All party litigants in Scotland and anyone with an interest in the justice system are advised to read the guide, which can be downloaded from the Scottish Court Service website HERE in pdf format. Currently no similar guide exists for party litigants in Scotland’s Sheriff Courts, although with the Sheriff Court Rules Council currently considering how to implement the use of McKenzie Friends across Scotland’s lower courts, as I reported last month HERE, it is hoped something along the lines of the Court of Session’s party litigant guide will be issued for use in Scotland’s Sheriff courts where most small actions involving party litigants are heard.

Guidance from the Scottish Court Service on how to apply for McKenzie Friends. The updated guidance from the Scottish Court Service on McKenzie Friends statees : “If you are acting on your own behalf you may apply for permission to have a named individual support you. This is set out in Chapter 12A – Lay Assistance for Party Litigants (pdf) and is similar to the concept of a ‘McKenzie Friend’ in the English courts. You may choose to have this supporter sit beside or behind you at any hearings in court or in a judge’s chambers. The supporter is not allowed to speak on your behalf. You must apply for this permission by enrolling a motion. You motion must be accompanied by Form 12.A-A (Application by party litigant for lay support) which you and your proposed supporter must sign. Part 2 of Form 12.2-A) asks for confirmation on various matters from the proposed supporter. Motions will be granted unless the court is satisfied that to do so would not be conducive to the efficient administration of justice.”

Any permission:
* is not effective during any period when you are represented by a solicitors;
* is granted only until the proceedings are finished:
* is granted until the permission is withdrawn.

The court may withdraw permission on its own motion or on the motion of any party. The court must be satisfied that it would be contrary to the efficient administration of justice for the permission to continue.

You may want your supporter to :

* provide moral support;
* help to manage the court documents and other papers;
* take notes of the proceedings;
* quietly advise on -
- points of law and procedure;
- issues which you might want to raise with the court;
- questions which you might wish to ask witnesses.

Application for McKenzie Friend Form 12.A-A. You may show your supporter any document including court documents. The supporter may receive any information in connection with the proceedings which is in your possession. This would not be a contravention of any prohibition or restriction on the disclosure of the document or the information. The supporter would then be subject to any prohibition or restriction in the same way as if he or she were the litigant. Any expenses you incur as a result of an individual’s support are not recoverable expenses in the proceedings.

You can read my earlier coverage of the campaign to bring McKenzie Friends to Scotland, and how having a McKenzie Friend in court may assist party litigants here : McKenzie Friends for Scotland : The story so far. All written submissions for the McKenzie Friend petition (Petition 1247) at the Scottish Parliament can be read here : Written submissions for Petition 1247, McKenzie Friends for Scotland