2011 dawns with success for Consumer Focus Scotland, Which?, campaigners & media as McKenzie Friends now available in Scotland’s Sheriff Courts

Scotland’s Consumer champion, Consumer Focus Scotland welcomes new rules on ‘McKenzie Friends’. CONSUMER FOCUS SCOTLAND have welcomed the introduction of rules on January 1 2011 clarifying the use of McKenzie Friends, or Lay Assistants in Scotland’s Sheriff Courts, finally enabling all party litigants in all Scottish courts who cannot afford or cannot obtain the services of a solicitor, to instead take along an individual of their choosing to assist their representation of their own case, a right in Scotland only enjoyed up to now by party litigants in Scotland’s Court of Session since June 2010.

McKenzie Friends campaign brought together litigants, judges, consumer organisations, campaign groups, international lawyers & the media. The Court of Session’s introduction in June 2010 of the right to use McKenzie Friends in Scotland’s Highest Court only came about after a long campaign by various consumer organisations, a two year long investigation of Scotland’s Civil Justice System & recommendations from Scotland’s Lord Justice Clerk, Lord Gill contained in the Civil Courts Review, a November 2009 Court of Session ruling, work by many campaigners, and support from the original McKenzie Friend himself, Ian Hanger QC, all of which was reported right here on Diary of Injustice and in the media, eventually leading to the introduction of McKenzie Friends to Scotland’s justice system some forty years after England & Wales first introduced McKenzie Friends in 1970.

Consumer Focus Scotland announced in their Press Release : The court rules governing the use of McKenzie Friends came about following a long campaign by various organisations and individuals committed to the reform of civil justice in Scotland, including Consumer Focus Scotland.

Research conducted by Consumer Focus Scotland and the Scottish Legal Aid Board into The Views and Experiences of Sheriff Civil Court Users found that those who were unrepresented were particularly likely to be concerned about having to stand up in court on their own to address the sheriff and not being able to understand the language being used by the sheriff and other legal professionals.

The research suggests that unrepresented litigants might benefit from the opportunity to have a McKenzie Friend with them in court, who could provide them with moral support and other appropriate assistance. By helping the litigant to present their case better there are also potential benefits for the court and the other party involved in the court action.

Gemma Crompton, Senior Policy Advocate on Legal Services for Consumer Focus Scotland, said : “It has long been our view that McKenzie Friends offer valuable support to unrepresented parties in court. They are a consumer-friendly way of allowing court users to feel more confident and better supported, making the experience of going to court less daunting. We are delighted that users of the civil justice system in Scotland now have clarity on the use of McKenzie Friends within the sheriff court, as well as the functions they are able to perform.”

Ms Cromnpton continued : “However, as with any new rules it will be crucial for the courts to make users aware that they are able to bring along someone to provide them with such support. It will also be important for these new arrangements to be monitored to determine how effective they are and to ensure that they are meeting the needs of users of the civil justice system in Scotland.”

The rules clarifying the use of McKenzie Friends across Scotland’s Sheriff Courts are contained in the Act of Sederunt (Sheriff Court Rules) (Miscellaneous Amendments) (No. 2) 2010 although earlier hopes the Sheriff Courts would break from some of the stringent conditions imposed on the use of McKenzie Friends in the Court of Session have been dashed, and also, notably, any expenses incurred as a result of using a McKenzie Friend are not recoverable, at least for now.

The Sheriff Court rules, spread across the court process of Ordinary Cause, Summary Cause, Summary Application, & Small Claim Rules in the Act of Sederunt (Sheriff Court Rules) (Miscellaneous Amendments) (No. 2) 2010 read as follows :

“Lay support :

2.2—(1) At any time during proceedings the sheriff may, on the request of a party litigant, permit a named individual to assist the litigant in the conduct of the proceedings by sitting beside or behind (as the litigant chooses) the litigant at hearings in court or in chambers and doing such of the following for the litigant as he or she requires—

(a)providing moral support; (b)helping to manage the court documents and other papers; (c)taking notes of the proceedings; (d)quietly advising on— (i)points of law and procedure; (ii)issues which the litigant might wish to raise with the sheriff; (iii)questions which the litigant might wish to ask witnesses.

(2) It is a condition of such permission that the named individual does not receive from the litigant, whether directly or indirectly, any remuneration for his or her assistance.

(3) The sheriff may refuse a request under paragraph (1) only if— (a)the sheriff is of the opinion that the named individual is an unsuitable person to act in that capacity (whether generally or in the proceedings concerned); or (b)the sheriff is of the opinion that it would be contrary to the efficient administration of justice to grant it.

(4) Permission granted under paragraph (1) endures until the proceedings finish or it is withdrawn under paragraph (5); but it is not effective during any period when the litigant is represented.

(5) The sheriff may, of his or her own accord or on the incidental application of a party to the proceedings, withdraw permission granted under paragraph (1); but the sheriff must first be of the opinion that it would be contrary to the efficient administration of justice for the permission to continue.

(6) Where permission has been granted under paragraph (1), the litigant may— (a)show the named individual any document (including a court document); or (b)impart to the named individual any information, which is in his or her possession in connection with the proceedings without being taken to contravene any prohibition or restriction on the disclosure of the document or the information; but the named individual is then to be taken to be subject to any such prohibition or restriction as if he or she were the litigant.

(7) Any expenses incurred by the litigant as a result of the support of an individual under paragraph (1) are not recoverable expenses in the proceedings.”.

So, what are you waiting for ? Cant find a lawyer who will represent your case or honestly handle your legal affairs in court because maybe the case involves litigation against a law firm, a lawyer or perhaps the legal profession feel your case or your right of access to justice is not in their own best interests to pursue ?

You could potentially save tens of thousands of pounds by using a McKenzie Friend instead of costly law firms who may be more interested in stringing you along for a few fee demands rather than swiftly progressing your litigation through the court. If you do choose to use a McKenzie Friend, and want your case reported in the media, something which may well benefit your case or others who may wish to use a McKenzie Friend instead of a lawyer, do drop me or one of the team a line at scottishlawreporters@gmail.com with details of your case and how you are being treated in the court.

You may also wish to show your gratitude to Consumer Focus Scotland for all their work later this year by making your opinions on their championing of consumer issues affecting Scots when the Coalition Government at Westminster launch a consultation over their very anti-consumer decision to scrap Consumer Focus. I will report more on the consultation when it is announced, and hope many of my readers will lodge submissions asking for the retention of Scotland’s Consumer Champion at a time when their services are needed even more.