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

Lord 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: lppo@scotcourts.gov.uk

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.