Thursday, July 28, 2011

Lay representatives able to speak on behalf of party litigants in Scottish courts : Your views required by 31 August 2011 for consultation

Lord Hamilton judicialLord President Lord Hamilton considers talking lay representatives in Scotland’s Courts, strict rules & no pay required. LORD HAMILTON, Scotland’s chief judge, the Lord President, is to consider how LAY REPRESENTATIVES with the ability to make oral representations on behalf of party litigants who cannot obtain the services of a lawyer will function in Scotland’s Courts after rules allowing ‘speaking’ lay assistants eventually come into force sometime in 2012. Plans to allow the access to justice reforms have already seen proposals from a judge led working group which include even stricter regulation than appears to be applied to solicitors, the banning of any expenses being recovered by party litigants represented by lay assistants, and the notable capital offence forbidding of any payment to lay representatives, the latter move encouraged by Scottish lawyers worried they may lose out on client fees.

The reform allowing ‘speaking’ lay assistants comes after the Court of Session was given power in Sections 126 & 127 of the Legal Services (Scotland) Act 2010 to make rules permitting a lay person to make oral submissions to the court on behalf of a party. The provisions for talking lay representatives come into force on 1 September 2011, however the rules governing their use & conduct will not be enacted until sometime in 2012, such is the mediocre pace of change in Scotland’s “Victorian” justice system.

To assist the Lord President Lord Hamilton & the Scottish Court Service in their consideration of how talking lay representatives can be ‘managed’ in Scotland’s courts, a working group was established, chaired by Lord Pentland. Its members are drawn from the Court of Session and Sheriff Court Rules Councils and the Scottish Government.  Its aim is to present policy proposals, accompanied by suitable amendments of the rules of court, to the councils by the end of October

Lord  Pentland’s working group has now published its consultation, to which consumers are urged to participate in, to give balance to the weight of proposals, and I dare say, objections from the legal profession who have already made their feelings known about increased competition in the  courts where members of the public can potentially save themselves tens of thousands of pounds by using lay representatives rather than expensive legal representation which, in particular types of cases, does not seem to function in the client’s best interests.

Lord Pentland’s working group’s analysis of the current provisions in the Legal Services Act note some important points consumers & court users may wish to consider raising in responses to the consultation :

The new provisions only permit the making of an oral submission by a lay person. They do not facilitate any wider ability for a non-lawyer to represent a party, such as is permitted by section 36(1) of the 1971 Act in relation to summary causes.  It is noted, accordingly, that the submission of documents in support of an oral submission, such as supporting written submissions or a rule 22 note in ordinary actions in the Sheriff Court, will still require formally to be performed by the litigant.

The group also notes that the new  provisions do not afford any scope for a lay person to engage in the examination of witnesses.  This falls beyond the concept of an oral submission.

The group observes that the new  provisions permit a lay person to make submissions only “when appearing  at a hearing…along with a party to the cause”.  Given that only natural persons can appear as parties, it is clear that the new provisions do not extend  to permitting the making of an oral submission on behalf of a company or other non-natural person.

The group considers that a lay  representative must be regarded as distinct from a person affording lay assistance under the new rules recently made to that end (Chapter 12A of the Rules of the Court of Session and rule 1.3A of the Ordinary Cause Rules).  In some cases a lay assistant might also be considered suitable to be a lay representative, but this would depend on the particular circumstances

Assistance and representation would be subject to the control and discretion of the court and permission would be given only if the court was satisfied that this would help. The court would have to be satisfied as to the character and conduct of the proposed representative and would be at liberty to withdraw permission for that person to act for the party.  In particular, the court would wish to be satisfied that the McKenzie friend was not offering his services for financial reward.”

Lord Pentland’s group favoured adopting the test recommended by Lord Gill’s Civil Courts Review, namely that the test for granting an application should be that it would “assist the court”. This differed  from the test in relation to granting an application for lay assistance, which was that it should be refused “only if it would be contrary to the efficient administration of justice to grant it”. That test is appropriate given the particular role of the lay assistant. But in relation to lay representation, the test should be a somewhat tighter and more focussed one.

The working group also favoured including in the rules a requirement that an application for lay representation should be made in advance of the hearing concerned.  It was felt that the interests of the other party or parties needed to be protected.  It was also felt that such an approach was warranted by the need for the efficient disposal of business as well as ensuring that the person was a suitable person to make an oral submission

The group discussed the form which the application should take in the ordinary case where it was made in advance of the hearing. There was some resistance to the suggestion that a written motion should be required in the Sheriff Court on the basis that this would give rise to a fee, though it was difficult to see how the application could be made without a motion.  It was noted that it would be open to the Scottish Government to amend the fees order if the view was taken that charging a fee was inappropriate.  In the Court of Session, the model of Chapter 12A should be followed – that is, that there would require to be a motion accompanied by a suitable form

The group discussed whether it would be possible in the rules to allow a standing authorisation for a lay representative in relation to all hearings in a case; or for representatives from a certain organisation in all cases.  However, it was noted that it was not the intention of the power conferred by sections 126 and 127 to create a class of authorised lay representatives (something the Scottish Courts & legal profession are eager to block at all costs) and the question of whether the making of a submission by a particular person in a particular hearing would assist the court required to be judged according to the circumstances of the hearing itself.

Finally the question of payment for lay assistance was debated once again, a matter generating strong opinions within the legal profession who see paid lay assistants as a threat to the business & extortion profit models of Scottish law firms.

Unsurprisingly, Lord Pentland’s working group came down hard on the remuneration subject, as eager as the Court of Session to stamp out any thought a lay assistant could be paid for their services in a Scottish court, while in England & Wales, remuneration, at least for McKenzie Friends has been allowed and is now even case law in : [N (A Child) [2009] EWHC 2096 (Fam)] to support the right or entitlement of a McKenzie Friend to charge or at least receive some form of remuneration for their services.

On the remuneration subject, Lord Pentland’s working group agreed that it was appropriate for the rules to prohibit the lay representative from receiving remuneration, directly or indirectly, from the litigant.  This was consistent with the position reached in relation to lay assistance. However, it was claimed this prohibition on remuneration for lay assistants “was not intended to operate as a barrier to representation by remunerated members of advice agencies.”

As with lay assistance, the working group was of the view that:

(a)  permission to make an oral submission should be automatically withdrawn in the event of the litigant obtaining legal representation;

(b)  the court should be able to withdraw permission in the event that it considered that the test for permitting it was no longer met or that the person was no longer suitable (though this would not of course apply once the submission had commenced);

(c)  where permission was granted:

(i)  the litigant would be permitted to show the representative any document (including a court document);

(ii)  the litigant would be permitted to impart to the representative  information without contravening prohibitions on its disclosure but the representative would then be subject to the same prohibitions;

(d)  any expenses incurred by the litigant as a result of the representation were not to be recoverable expenses in the proceedings.

The full consultation can be downloaded from the Scottish Courts website HERE (pdf)

YOUR VIEWS are sought on the initial policy proposal and on any other matter which is considered relevant. You may also wish to consider asking your MSP to write into the consolation giving their views on the subject. Views should be directed, in writing, not later than 31 August 2011 to:

The Lord President’s Private Office
Parliament House
Edinburgh  EH1 1RQ
or by email to:

Responses will be made available to the members of the working group and also to the members of the Rules Councils. They may also in due course be published. Please indicate in your response if you do not wish it to be published.


Anonymous said...

What the heck is wrong with paying a lay representative for their work in Scotland?

It should NOT be for lawyer to dictate if someone they are obviously worried about gets a fee for doing something a heck of a lot cheaper than a lawyer wants to do it for.

Anonymous said...

They wont allow lay representatives to examine witnesses.This will presumably mean the party litigant has to do this,right?

So it will be a case of the lay representative making the statements then the party litigant doing everything else or what they are capable of doing according to the whim of the court.

And they call this kind of garbage a reform?

Anonymous said...

Is it worth even bothering?

The Law Society will have this one already in the bag anyway and what the Law Society says Mr Salmond does like a puppet on a string.

Anonymous said...

Since when do judges listen to the public?This has already been decided in my opinion although you are correct to highlight this bias happening right under our noses in our stupidly run courts.

Anonymous said...

Thanks Peter I will certainly write into the Lord President and tell him what I think about this.

Thanks for keeping us informed and I liked the part about the lawyers worried about their legal fees being the reason they dont want these people getting any money for their work! How true!

Anonymous said...

Im sure Hamilton will be so chuffed you've written about this!

Anonymous said...

I think we get the part about the motives for restricting payment BECAUSE IT STANDS OUT A MILE

By the same token do you ever think the judges would ban lawyers being paid for their time wasting court appearances just to leech some more from their clients?

Oh no that wouldn't do because it might stop all those dinners & get-togethers with the Law Society etc

Anonymous said...


What forms of punishment are being proposed for paying lay representatives?


Their fixation with this ban on payments reveals the whole thing for what it is - another sham.

Anonymous said...

Lord Pentland really does enjoy pulling the occasional leg or two.

The following sentence states :"However, it was noted that it was not the intention of the power conferred by sections 126 and 127 to create a class of authorised lay representatives."

Clearly it was not the intention of the Legal Services Act to create competition to the legal profession (which is what this is all about as your readers have already spotted) however it is not for the court to come down so hard on party litigants to the nth degree of obstruction such as prohibiting any payments to lay representatives either directly or indirectly.

I submit to you this is yet another example of the sheer prejudice displayed by our judiciary and legal profession against party litigants.

Anonymous said...

At the end of the day we as taxpayers are paying for all of this so why shouldnt we be able to go into a court with someone other than a lawyer and pay them if needed?

Stinks to high heaven if you ask me.CROOKED and ROTTEN all the way through as far as Scotland's justice system goes.

Anonymous said...

Lord President Lord Hamilton considers talking lay representatives in Scotland’s Courts, strict rules & no pay required.

You said it all in the opener!

Anonymous said...

The Law Society and SLCC are the most corrupt. They protect lawyers and no matter what bull they sprout they are
anti client.

Anonymous said...

A real shambles as always

Anonymous said...

Well after reading what you posted and the comments I want to know why they are even bothering with all this if they wont let the lay person/representative ask a witness any questions?
A lawyer is allowed to ask questions of witnesses so why not a lay person and if the lay person is all you can get its very unfair if after you got them to do it and all for free you have to get up yourself and ask the witness questions.Doesnt it all sound a bit useless really?

Anonymous said...

I think it would be very useful for readers to write expressing their points of view to the Lord President, and keeping a copy.

Then at least it is a matter of record.

Equally one could email and lobby for an online petition at;

Anonymous said...

Looks like they dont want anyone to show up in a court do they?

Anonymous said...

They can ban lawyers extorting fees from clients instead and do some bloody good for a change to stop those thieving b*stards wiping people out just so they get their crooked bills paid

Anonymous said...

So once again the lawyers self preservation society controls the courts and who goes into them not the other way around ie the clients who have to pay for it all.
Doesnt it just make you sick to your stomach having to write about all this filth?
although if you didnt write it like you do no one would know what is really going on with all these horrible people controlling our legal system for their own ends and then saying its all about keeping up standards in the system (total BS)

Anonymous said...

They are quoting the Civil Courts Review from 2009 and it wont be 2012 before some form of speaking lay assistant is available in court?
Not very speedy is it or is this just giving time to lawyers to prepare to lose a few more clients (something I am very much in favour of)

Anonymous said...

The reform is still constructively protecting the monopoly of lawyers, unless it gives the same rights to lay representatives to conduct litigation and to be reasonably compensated. Otherwise, it's only reinventing the wheel.

Even volunteers get reasonable compensation for their incurred expenses.

What happened to our unjust enrichment principles? It's leonine bargain!

Anonymous said...

They won't allow lay representatives to examine witnesses = the Party Litigant will have to do it.

So, the in-built prejudice against unrepresented litigants is to be maintained (I.E. those litigants who cannot get representation because .......? - could it be that the high-heid-yins of the Law Society of Scotland disapprove of their cases against solicitors' vested interests?).

Is anyone honestly attempting to contend that this is "equality of arms" complaint? {ECHR art.6}

Come off it Lord Hamilton, pull the other one, its got bells on. You, My Lord, are being intellectually dishonest and you must know it!

Consider the standard description of the Scottish system of Lord Justice-Clerk (Thomson) in Thomson v Corporation of Glasgow 1962 S.C. (H.L.) 36 (a case specifically referred to in the Parliament House Book - the book of Rules for our "Victorian" procedures):-
"Our system of administering justice in civil affairs proceeds on the footing that each side, working at arm's length, selects its own evidence. Each side's selection of its own evidence may, for various reasons, be partial in every sense of the term. Much may depend on the diligence of the original investigators, or on the luck of finding witnesses or on the skill and judgment of those preparing the case. At the proof itself whom to call, what to ask, when to stop and so forth are matters of judgment. A witness of great value on one point may have to be left out because he is dangerous on another. Even during the progress of the proof values change, treasured material is scrapped and fresh avenues feverishly explored. It is on the basis of two carefully selected versions that the Judge is finally called upon to adjudicate. He cannot make investigations on his own behalf; he cannot call witnesses; his undoubted right to question witnesses who are put in the box has to be exercised with caution. He is at the mercy of contending sides whose whole object is not to discover truth but to get his judgment. ... A litigation is in essence a trial of skill between opposing parties conducted under recognised rules, and the prize is the Judge's decision. We have rejected inquisitorial methods and prefer to regard our Judges as entirely independent. Like referees at boxing contests, they see that the rules are kept and count the points."

So, in the mind of the present Lord President of the Court of Session - an untrained, perhaps inarticulate & uneducated party litigant, with barely a vague understanding of the points that his opposing Queen's Counsel is getting at, is somehow going to be able to meet and equal the test of the "trial of skill" required to match those of a team of experienced and skilled advocates and litigation solicitors.

Really - do you truly think so?

I think common sense would say - not very likely.

Please would you just dump the bogus pretense that you are even giving any serious consideration to reforming things with a view to improving "equality of arms". It is more than apparent that this is not a sincere intention of your review.