Scottish Court interlocutors branded “toilet roll” as hospitality gorged court staff refuse to correct errors, omissions of what judge really said in court

The £220K toilet roll - Court documents are full of errors,omissions say clients, solicitors. INTERLOCUTORS from thousands of cases heard each year in Scotland’s “Victorian” courts may not worth the paper they are printed on due to hundreds of errors, incorrect references, inaccurate points of law, and what in some instances appear to be intentional omissions of what the judge actually said in court. The situation is becoming so bad, some solicitors have dubbed interlocutors as “toilet roll”, even though the documents are supposed to be scrutinised and signed by Scottish judges earning up to £220K a year.

And, when mistakes in interlocutors are pointed out by clients and their solicitors, angry Scottish Court Service staff apparently more interested in stocking up on hospitality, gifts chocolate & champagne than doing their job, routinely refuse to correct their own errors, claiming that documents cannot be changed as they reflected exactly what happened in court - even when it is clear the official account of proceedings contains elements of a fairy tale.

As court users will be well aware, an interlocutor is the document that officially records the final decision of a court.

Interlocutors are usually prepared by the sheriff clerk and handed on to the sheriff for their scrutiny and final signature. A copy of the signed interlocutor (the original being kept at the court as part of the process) is then sent out by court staff to litigants or their legal representatives, awarding the legal authority to put the decision by the court into action.

However, if the content of an interlocutor is incorrect, the lives of litigants can easily be turned upside down along with their relationship with their legal representatives, due to mistakes, errors or deliberate omissions of a sheriff clerk who failed to produce a true and accurate account of what the judge said or decided in court. And due to the attitude or motives of those who prepare the interlocutors, it is often impossible to have any mistakes rectified.

While members of the judiciary are expected to check the interlocutor for its correctness and accuracy, the frequency of mistakes and omissions contained in interlocutors have led to rising numbers of litigants and solicitors questioning whether the sheriff or judge has ever seen the interlocutor, or had time to check it, even though their signature appears on the document.

In some cases, copies of interlocutors which have been sent out to party litigants, appear to be copies of a copy, with, in the words of one solicitor “a photocopied signature of a sheriff placed at absurd angles to the remainder of the document”.

In a recent case brought to the attention of Diary of Injustice by member of the legal profession who was contacted by a party litigant, an apparent ink stain error made by a sheriff during his signing of an interlocutor was accurately repeated in interlocutors issued in different cases on different dates, sent out to several law firms operating in the same part of Scotland, along with one party litigant.

All the interlocutors apparently signed with the same sheriff’s signature along with the same ink stain error, contained numerous & repetitive mistakes which were only corrected after four solicitors simultaneously contacted the sheriff clerk and made him aware they had “evidence to suggest the signatures were not authentic”. From enquiries made on this matter by one of the solicitors concerned, it appears the Scottish Court Service were not made aware of this incident by the sheriff clerk in question.

Unsurprisingly, the frequency of mistakes, incorrect references & omissions contained court in interlocutors appear to increase when cases involving disputes between clients and their law firms, damages & injury claims against large insurers, big business, medical negligence claims & cases involving public authorities. And, in many cases were sheriff clerks have been contacted about the mistakes, they have failed to tell their superiors a complaint has even been made about their work.

In another case already covered by Diary of Injustice which related to a sequestration of a client by a Perth law firm who left their client standing on the steps of the Court of Session without a lawyer, which in turn contributed to the collapse of the client’s medical injury claim, similar questions were raised as to the authenticity of interlocutors originating from Perth Sheriff Court.

Speaking to Diary of Injustice today, a client who did not wish to be named, alleged he had been threatened by a sheriff clerk after informing him the interlocutor produced by the court “looked like a forgery”. and contained inaccurate details of what had actually been said in court along with references to “created evidence”.

If readers have similar experiences of mistakes, omissions, perhaps deliberate errors in interlocutors and feel questions regarding the authenticity of interlocutors issued by Scottish Courts must be raised, media attention to this problem may help.

Diary of Injustice would also like to hear from any litigants or court users who have made complaints to the Scottish Court Service regarding the authenticity or integrity of a court interlocutor Readers can contact Diary of Injustice at scottishlawreporters@gmail.com

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.

Lord Gill’s Civil Justice reforms ‘cherry picked’ in Law Society report as lawyers rush to protect ‘Victorian’ business model over access to justice

Law Society finally submit their proposals to cherry-pick Lord Gill's Civil Justice reform recommendations. AFTER well over a year since the Lord Justice Clerk, Lord Gill published his damming 2009 Civil Courts Review investigation of what he himself branded Scotland’s “Victorian” justice system, the Law Society of Scotland have today finally submitted their own recommendations, effectively cherry picking ‘some’ of the reforms recommended by Lord Gill which the Law Society feel are broadly in favour of the legal profession’s vested interests, while also recommending the Scottish Government form a Civil Justice Council for Scotland, which unsurprisingly will be driven by the Law Society itself.

Lord Gill. The Lord Justice Clerk, Lord Gill spoke at last year’s Law Society of Scotland’s 60th Anniversary Conference, castigating Scotland’s civil justice system as “a Victorian model that had survived by means of periodic piecemeal reforms”. Lord Gill went onto say Scottish civil justice fails on many counts, have notorious delays and high costs to litigants, deter claims which may be well-founded and branded its procedures as frustrating and obstructive rather than facilitating the achievement of justice. I recently reported on the one year plus, anniversary of Lord Gill’s Civil Courts Review, and the lack of any progress on the Lord Justice Clerk’s recommendations to reform Scotland’s ‘Victorian’ civil justice system, here : Civil Courts Review one year on : Scotland’s out-of-reach justice system remains Victorian, untrustworthy and still controlled by vested interests

Law Society now ‘support’ the introduction of McKenzie Friends, as long as they are not paid and don't compete with solicitors. Among the many recommendations of Lord Gill which the Law Society makes supportive comment, the question of the introduction of McKenzie Friends, which the Law Society & Faculty of Advocates both initially opposed during hearings at the Scottish Parliament into Petition 1247 (McKenzie Friends for Scotland), has now attracted a ‘qualified support’ from the Law Society.

The Law Society’s submission to the Scottish Government on the issue of McKenzie Friends states : “The Committee has had the opportunity of further debating the issues and is supportive of the introduction of McKenzie Friends. The Committee agrees that there should be an automatic right to use a McKenzie Friend. However, it should be within the court’s discretion to insist on a withdrawal of a McKenzie Friend if it determines that the position is being abused.”

However, and not unexpectedly, the Law Society has now revealed its official opposition to the prospect of McKenzie Friends (lay assistants) being paid for their services in Scottish courts – an opposition borne out of the Law Society’s fear of its member solicitors losing business to vastly cheaper McKenzie Friends. While Scottish McKenzie Friends are prohibited from being paid for their work, existing case law in England & Wales supports McKenzie Friends receiving some form of remuneration.

The Law Society stated, with regard to their opposition to McKenzie Friends being paid a fee : ”The Committee would be concerned if Mackenzie Friends were remunerated for their assistance. The Court of Session Rules Council has drafted a Rule on the basis that Mackenzie Friends will not be paid, which the Committee supports.”

Law Society report also recommended spying on McKenzie Friends with an online register. In a sinister twist with overtones of unwarranted spying by the courts & legal profession on individuals appearing in court as McKenzie Friends, the Law Society submission to the Scottish Government also recommended keeping a register of people who appeared in Scottish courts as McKenzie Friends, enabling those individuals ‘to be monitored’. The Law Society’s justification for spying on McKenzie Friends states : “There is also a concern if Mackenzie friends provide assistance to a large number of unconnected party litigants. This should perhaps be monitored. One option would be for an on-line register of all persons who appear as McKenzie Friends.”

Consumer Focus Scotland & Lord Gill support wider public legal education, as do now the Law Society, to a certain extent. Regarding Lord Gill’s recommendation of ‘wider public legal education’, an issue championed for some time by Consumer Focus Scotland, and the subject of a recent petition (Petition 1354) to the Scottish Parliament, the Law Society’s submission states : “The Committee welcomes public legal education. The Committee believes that public legal education helps overcome hurdles which may impede access to the legal system and accordingly access to justice.”

“The Committee welcomes the current in-court advice project and believes that the project initially started in Edinburgh Sheriff Court should be extended throughout all Sheriffdoms in Scotland. At present, unrepresented litigants, through the in-court advice schemes, can receive advice before their case calls in court. These initiatives clearly improve access to justice but require to work in conjunction with a properly funded legal advice scheme giving access to advice by solicitors. Although there are other in-court advisory schemes, the one in Edinburgh is free and should be the model for other such advisers.”

It took 19 years to raise Scotland’s small claims limit from £750 to £3,000, now the Law Society wants to limit the value of Sheriff Court cases once again. Another of the Civil Courts Review recommendations, namely that of the increase in values of claims the Sheriff Court can hear, from its current level of £5,000 to £150,000, received a more frosty response from the Law Society, who, unsurprisingly, with its members potentially losing business & Court of Session appearance fees, claimed : “The Committee is very keen to retain the Court of Session as a court of first instance for suitable cases. The Court of Session is a centre of excellence, which is well respected for both the high level of judicial expertise and the guidance which it provides to the lower courts, both as a court of first instance and as an appellate court.”

The Law Society preferred a smaller increase in Sheriff Court case values, stating further in its submission : “Taking account of these views and of those who deal with other types of litigation, including commercial actions, the Committee consider that an appropriate threshold for Civil cases in the Court of Session would be not less than £20,000 and not more than £50, 000. i.e. The privative jurisdiction of the Sheriff Court should be increased from the current £5,000 to at least £20,000 but should not be more than £50,000.”

With further regard to personal injury claims & the value of cases, and Lord Gill’s recommendation that a specialist personal injury court should be created, based in Edinburgh Sheriff Court but with jurisdiction throughout Scotland, giving pursuers a choice between local access to justice or the advantages of a Sheriff Court with all Scotland jurisdiction, the Law Society categorically opposed the idea, stating : “The Committee is not persuaded there is a rationale for the introduction of a national Personal Injury Sheriff Court in Edinburgh or any other single location. The Committee still favours specialisation for Sheriffs in each Sheriffdom. Much depends on the privative level of the Sheriff Court. If appropriate specialists are employed and the threshold were to be set between £20,000 and £50,000 there is no need for a national court.”

Scots have waited 27 years for Class Actions, will have to wait some more. On the issue of Class Actions or multi-party actions, also recommended for introduction by Lord Gill, the Law Society disagreed with some of Lord Gill’s views, doubtless in an effort to prolong the introduction of class actions to Scotland’s civil justice system. The Law Society’s submission to the Scottish Government on the question of the introduction of class actions to Scotland states : “The Committee do not agree that judicial discretion should be exercised to determine whether a multi-party litigation is an opt-in or opt-out (ie included unless they tell the court that they do not wish to be included) for claimants. The Committee consider that depriving an individual of the right to litigate requires primary legislation. This is an important question of access to justice.”

The Law Society also disagreed with Lord Gill’s recommendation that Petitions for judicial review should be brought promptly and, in any event, within a period of three months. The Law Society instead claimed : “a three month time scale is too tight to exhaust all the administrative options. Six months would be a more manageable and appropriate period, particularly if the court had further discretion in the circumstances where it was just and equitable to allow a petition outwith the period.” The Law Society went onto agree with recommendations for tests on the success of Judicial Reviews, agreeing that a ‘sift’ panel should be introduced to remove Judicial Reviews which have no chance of success, with those who fail the first test being able to appeal to a second ‘sift’ panel.

On the question of ‘mediation’ in disputes, the Law Society stated that mediation and other forms of extra- judicial dispute resolution should be voluntary, and agreed that a free mediation service should be provided for claims under the new simplified procedure. The Law Society’s submission contended “such a [mediation] service would only be successful if it is funded and publicised by the Scottish Court Service and is effectively free to the users.”

The Law Society issued a Press Release, ever-imaginatively-titled Society urges Scottish Government to implement civil justice reforms, announcing its orders to civil servants & Scottish Ministers submission to the Scottish Government. Kim Leslie, convener of the Society's Civil Justice Committee, said: "Lord Gill's report identifies a number of structural and other weaknesses currently affecting Scotland's civil courts, and makes recommendations designed to make radical improvements which, if implemented, will dramatically alter the delivery of civil justice in Scotland. We made submissions to the initial consultation as part of Lord Gill's review and welcomed publication of the report in September 2009. We are now keen to see implementation of some of the key recommendations to improve civil justice in Scotland.”

"The scope of the review was huge, and the Society's Civil Justice Committee has not commented on every recommendation in the review, however one of our own key recommendations would be to separate civil and criminal business within the Sheriff Court because many of the current problems arise from the huge amount of judicial time which is spent dealing with summary cases.”

“We also support the view that there should be specialisation within the judiciary, in particular in administrative, environmental and planning law as well as family, commercial and personal injury cases. Such specialisation could be introduced without the need for primary legislation and at no great cost to the public purse - there has already been a successful pilot in Glasgow Sheriff Court of such a system and think this would be beneficial if rolled out across Scotland. The committee is also keen that there should be the option of using a commercial court in each Sheriffdom."

The Law Society’s Press Release went onto say the Society's Civil Justice Committee has also backed increasing the threshold for civil cases in the Court of Session, Scotland's highest civil court. Currently the threshold for cases to be heard in a Sheriff Court is £5,000 and the committee believes this should be raised to at least between £20,000 and £50,000 to allow business to be directed to the appropriate level competent to deal with it.

Ms Leslie said: "Any increase in the threshold for cases to go before the Sheriff Court must coincide with the introduction of specialist sheriffs. We would also endorse the creation of a third tier, dealing with appropriate cases to alleviate pressure on the civil justice system.

"We are in broad agreement with many of the recommendations made in the Civil Justice Review, although we have also taken the opportunity to outline reservations on some of Lord Gill's recommendations, such as a national Sheriff Appeal Court for civil appeals. We would now urge the Scottish Government to implement some of the recommended reforms including the establishment of a Civil Justice Council for Scotland, which would bring in the cost and funding of litigation as part of its remit.”

"We are keen to see the introduction of workable improvements to Scotland's civil justice system for all those who use it and work within it and look forward to working with government in bringing forward reform."

The full Law Society of Scotland Civil Justice Committee report can be read at: Law Society of Scotland's Civil Justice response or readers can directly download it as a pdf, here : Law Society Civil Justice response

Protecting law firms business & extortionate fees, far & above over the rights of ordinary Scots access to justice doesn't come any more obvious than today’s Law Society’s response to the recommendations contained in Lord Gill’s Civil Courts Review.

Readers can download the Civil Courts Review report in pdf format, from the Scottish Courts Website at the following links :

• Volume 1 Chapter 1 - 9 (Covers McKenzie Friends, procedures, advice etc, 2.99Mb)
  
• Volume 2 Chapter 10 - 15 (Covers mainly the issue of Class (multi party) actions etc, 2.16Mb)
  
• Synopsis (215Kb)

Readers may also wish to gauge how Holyrood and the Scottish Government are treating the Civil Courts Review, from a report covering the last Holyrood debate on the subject, along with video footage, here : Holyrood debate reveals civil justice reforms & McKenzie Friends may be a long way off as Scottish Ministers stumble over Lord Gill review proposals

My coverage of the Civil Courts Review from its publication to the present, can be found here : Civil Courts Review - The story so far.

Holyrood Petitions Committee to keep McKenzie Friend campaign open until Sheriff Court plans are scrutinised by MSPs & formally introduced

Holyrood’s Petitions Committee heard latest on McKenzie Friends Petition. THE PETITIONS COMMITTEE of the Scottish Parliament have said they will not close Petition 1247 – McKenzie Friends for Scotland until MSPs have seen and had a chance to comment on the proposals from the Sheriff Court Rules Council to implement McKenzie Friends (otherwise known as lay assistants) in Scotland’s Sheriff Courts, following on from the Lord President's Act of Sederunt, passed earlier in the summer which introduced McKenzie Friends to Scotland’s Court of Session in mid June, some 40 years after McKenzie Friends were first introduced to the English court system.

Nigel Don MSP (SNP) said Petition should not be closed until Parliament scrutinises Sheriff Court plans. During the Petitions Committee’s Tuesday session, Committee member Nigel Don said progress was being made ‘very fast’ and expressed his gratitude to the Lord President for introducing McKenzie Friends to Scotland’s Court of Session. Mr Don went onto say the ”Sheriff Court Rules are being dealt with but they seem to have gone a little bit slower” and said he believed Petition 1247 should not be closed until the rules for the use of McKenzie Friends in Scotland’s Sheriff Courts are “in the public domain” and the Petitions Committee has a chance to see & comment on the Sheriff Court Rules Council proposals.

Mr Don’s comments came after the Petitioner, Perth based law reform campaigner Mr Stewart MacKenzie had written to the Petitions Committee urging members to contact the Sheriff Court Rules Council for a clearer timescale for the completion of the implementation of McKenzie Friends in Scotland’s Sheriff Courts, bearing in mind the Court of Session and the Lord President had managed to complete the process in around five weeks.

Petitions Committee Convener Rhona Brankin MSP concluded the discussion on Petition 1247, by continuing the petition until the Committee receive more information.

Petitions Committee 7th Sept. 2010 - Nigel Don : Parliament should have a chance to see & comment on the Sheriff Court rules for McKenzie Friends before petition is closed. (click image below to watch video)

I have reported previously on the Sheriff Court Rules Council’s discussions on the introduction of McKenzie Friends to Scotland's Sheriff Courts, here : Sheriff Court Rules Council reveals McKenzie Friends on course to help party litigants in Scottish Sheriff Courts by end of summer 2010

While party litigants in Scotland’s Court of Session have been able to apply for a McKenzie Friend to assist their case since mid June of this year, party litigants in Scotland’s Sheriff Courts, where most hearings in which McKenzie Friends will have a ‘helping hand’ take place, will have to wait until the Sheriff Court Rules Council formalise their plans for rules governing the use of lay assistants in Sheriff Courts before being able to apply to a Sheriff for lay assistance.

A spokesperson for the Sheriff Court Rules Council stated : “I can advise that the Sheriff Court Rules Council is still considering the procedure for McKenzie friends within the Sheriff Court and, in particular, is considering whether the approach by the Court of Session is appropriate in the Sheriff Court. At this stage, I am not able to advise when the provisions will be commenced.”

McKenzie Friends for Scotland. 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

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

McKenzie Friends ‘on the way’ to Scotland’s Sheriff Courts, application procedure to be ‘less formal’ than Court of Session

McKenzie Friends will soon appear to assist party litigants in Scotland’s Sheriff Courts. SHERIFF COURTS across Scotland are on the way to formalising the arrangements for unrepresented party litigants to obtain the services of a McKenzie Friend, the usually non-lawyer lay courtroom helpers which have provided invaluable assistance to thousands of party litigants in the English court system for the past forty years, after the Sheriff Court Rules Council let it be known their work on the issue is at draft stage, hopefully soon to be concluded.

A spokesman for the Sheriff Court Rules Council on being asked about the developments to bring McKenzie Friends to Scotland’s Sheriff Courts after I had reported earlier on the Sheriff Court Rules Council’s consideration of the issue, said yesterday : “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.“

He continued : “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. I should advise you also that the draft rules require some amendment so they are still under consideration by the Council.”

Lord Hamilton & Justice Secretary Kenny MacAskill were caught out by speed & widespread support of Holyrood McKenzie Friends Petition. The Sheriff Court Rules Council’s consideration of the McKenzie Friend question, follows the implementation of McKenzie Friends in Scotland’s Highest court, the Court of Session after Scotland’s Chief Judge, the Lord President, Lord Hamilton, and the Scottish Government were caught on the hop when a public petition (Petition 1247) was filed at the Scottish Parliament by Stewart MacKenzie, asking Holyrood’s Petitions Committee to address the 40 year exclusion of McKenzie Friends in Scotland’s courts. Video footage of the Scottish Parliament’s hearings on Petition 1247 can be viewed online at InjusticeTV.

Lord Gill proposed McKenzie Friends in Civil Courts review. Progress to finally bring lay assistants to Scotland’s civil courts was helped considerably by McKenzie Friends being recommended by Scotland’s Lord Justice Clerk, Lord Gill who had spent considerable time on the issue of lay representation as part of the two year Civil Courts Review. Lord Gill had also recommended a ‘super McKenzie Friend’ with a right of audience, enabling a lay assistant to address the court on behalf of party litigants, a proposal now part of the Legal Services (Scotland) Bill, which I recently reported here : McKenzie Friends from today in Court of Session, Lord Gill’s ‘super’ McKenzie Friend with rights of audience proposal goes to Holyrood

Court of Session judge Lord Woolman granted Scotland’s first civil law McKenzie Friend in late 2009. Not long after Lord Gill’s report on civil law reforms was published, a decision in what appears to be Scotland’s longest running civil claims action, now in its f o u r t e e n t h year, M.Wilson v North Lanarkshire Council & Others (A1628/01), overtook events at Holyrood and introduced Scotland’s first civil law McKenzie Friend in the Court of Session, granted by Lord Woolman, making the decision to introduce McKenzie Friends to general use in the Court of Session and lower Sheriff Courts, a formality, albeit a decision taking the best part of a year to complete.

Law Society of Scotland & Faculty of Advocates initially objected to Holyrood Petition bringing McKenzie Friends to Scottish Courts. The exclusion of McKenzie Friends from Scottish Courts has been attributed by many seasoned law reform campaigners, several politicians and even some insiders within the legal profession to the lobbying power of the Law Society of Scotland, who, along with the Faculty of Advocates, initially opposed calls to introduce the internationally acclaimed lay courtroom helper to Scotland’s courts, over fears consumers would turn to McKenzie Friends to save themselves the notoriously unjustifiably huge solicitor’s fees which are typical of even the simplest court actions in Scotland, a well known obstacle to justice which has excluded many members of the public from gaining access to Scotland’s courts over the past four decades.

However, while the legal profession have traditionally viewed themselves as the providers of access to justice to Scots, the fact is the legal profession are simply a multi billion pound business, who for many years have themselves monopolised Scots access to the court system & access to legal services, in effect, selecting who among Scotland’s population had access to justice, while excluding those who the Law Society decided should not be allowed near a court. Many know this to be true, as do many of Scotland’s highest judges. There are thousands of examples a year to support this view, with a trail of people left out in the cold by the legal profession who as a whole have little regard for the rights of individuals unless there is a huge amount of money to be made from their predicament.

Placing the interests of what is nothing more than a business above the rights of Scots to enjoy unfettered access to justice, is wholly wrong, and for this reason, many consumer groups across the UK backed the introduction of McKenzie Friends to Scotland’s courts, to increase Scottish consumer’s access to justice.

A senior official from one of Scotland’s consumer organisations today welcomed the developments from the Sheriff Court Rules Council, expressing hope the Scottish Court Service would offer written guidance in all of Scotland’s Sheriff Courts to assist members of the public on the issue, allowing informed choices to be made on using McKenzie Friends in cases which may benefit consumers & the interests of justice considerably by the use of lay assistants in many common types of cases which currently fall victim to unscrupulous solicitors who unnecessarily complicate even the simplest of Sheriff Court cases to ensure larger fees for their little input.

However, a Scottish Parliament insider said he was slightly disappointed the Sheriff Court Rules Council had not been able to proceed the matter at a faster pace, as the Petitions Committee was due to hear Petition 1247 in September and had hoped to report the availability of McKenzie Friends in all of Scotland’s courts, bringing the Committee’s consideration of the issue to a successful conclusion.

You can read my earlier coverage of the campaign to bring McKenzie Friends to Scotland, here : McKenzie Friends for Scotland : The story so far

All written submissions for the McKenzie Friend petition at the Scottish Parliament can be read here : Written submissions for Petition 1247, McKenzie Friends for Scotland