Sheriff Courts ‘unfair’ delay on McKenzie Friends until 2011 may impact on current cases of party litigant's access to justice

McKenzie Friends in Sheriff Courts are delayed until 2011. MCKENZIE FRIENDS in Scotland are back in the news today as it was revealed Scotland’s Sheriff Courts are to take several more months before introducing similar rules already implemented in the Court of Session during mid-June 2010 which allowed the internationally acclaimed courtroom helper into Scotland’s civil courts some forty years after McKenzie Friends first came into existence in England & Wales. It had been thought McKenzie Friends would have appeared in the Sheriff Courts by the end of summer 2010.

Lord Hamilton enacted ban on McKenzie Friends being paid in Court of Session, Sheriff Courts may take different approach. The eight month delay has been caused apparently by considerations of issues such as whether expenses should be recoverable by a litigant who has the support of a McKenzie Friend. McKenzie Friends can already receive remuneration for their services in English courts, however the Lord President’s introduction of McKenzie Friends to Scotland’s court of session saw a ban on McKenzie Friends being able to charge for their services, a restriction some observers believe came about after the legal profession voiced concerns over their loss of business.

A statement (pdf) given to the Scottish Parliament’s Petitions Committee by the Sheriff Court Rules Council secretariat in response to questions over the timetable of implementation revealed : “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. 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. An amended draft will be considered by the Council at its next meeting on 5 November.”

The statement to the Petitions Committee continued : “The delay has arisen as the Council wishes to adopt a similar approach in principle to that of the Court of Session but at the same time wishes to reflect the different practices and procedures that operate within the sheriff court. In particular, there is a question whether expenses should be recoverable by a litigant who has the support of a McKenzie friend. This has been excluded in the Court of Session Rules. A decision has still to be taken as to whether this exclusion should also apply in the sheriff court.”

The statement concluded : “The Council will consider other draft rules in relation to the recommendations contained within the Civil Courts Review. Subject to the drafts being approved by the Council, it is anticipated that the rules will be submitted to the Lord President with a view to the draft instrument being made in January 2011 with the rules coming into force in February 2011.”

Legal insiders & consumer groups today criticised the long process of bringing McKenzie Friends to Scottish courts.

An official from one of Scotland’s consumer organisations said the implementation process “could have been handled better, ensuring McKenzie Friends came into play in the Court of Session & the Sheriff Courts at the same time”.

A solicitor pointed out today while it had now been the case for some months that party litigants could apply for a McKenzie Friend to assist them in the Court of Session, party litigants in Scotland’s Sheriff courts were continuing to face a long wait on being able to use a McKenzie Friend, thus raising the possibility Sheriff court users may be facing a ‘loss of access to justice’.

On the subject of expenses & remuneration of McKenzie Friends, he said : “Personally I have no difficulty with McKenzie Friends in Scotland being able to charge for their services, so long as their service is a valued one and productive for the party litigant."

He continued : "Allowing McKenzie Friends to be paid may well encourage groups such as law students & others willing to act as McKenzie Friends, assisting access to justice and giving some of our solicitors of the future valuable experience in court from the perspective of those who choose to represent their own interests.”

I have previously reported on the differences between Scotland & the rest of the UK on the remuneration of McKenzie Friends, here : Lord President softens rules on Scottish McKenzie Friends, remuneration issue still out of step with England & Wales

The Petitioner, Stewart MacKenzie raised the issue of the Sheriff Court delay, writing in a letter (pdf) to the Petitions Committee : “Whilst I am very pleased that the Sheriff Court Rules Council propose a less formal process for McKenzie Friends in Sheriff Courts, with “no certification as regards the suitability of the individual which the Party Litigant wishes to assist in the conduct of the procedure being required”, I am however very disappointed at the amount of time that the Sheriff Court Rules Council are taking to bring McKenzie Friends into force in the Sheriff Courts, particularly where they say that it could be February of 2011 before matters are finalised.”

Mr MacKenzie continued, critical of the delays : “That being so and given the fact that Lord Hamilton brought McKenzie Friends into force in the Court of Session on 15th June 2010, the Sheriff Court system’s implementation of McKenzie Friends will be at least eight months behind that of the Court of Session. I would also say that this may not have been fair to Party Litigants, whose cases are currently in the Sheriff Court system.”

Clearly there should have been a more uniformed approach to bringing McKenzie Friends to all of Scotland’s courts, particularly considering the time many agencies have taken to input on Petition 1247

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.

I reported on a useful guide for party litigants in the Court of Session, which includes the use of McKenzie Friends, here : Access to justice improved : McKenzie Friends advice now included in guide for Court of Session’s party litigants

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