Censorship & ‘frequent flyers’ at Scottish Legal Complaints Commission reveal attempt to write off consumers evidence in Master Policy report

Victims of crooked lawyers branded "frequent flyers" & “biased” by anti client Scottish Legal Complaints Commission. A bungled attempt at censorship of documents released under Freedom of Information laws by the Scottish Legal Complaints Commission, reveals that board member David Smith, who is also the husband of Scotland's Supreme Court Judge Lady Smith, has hit out at ruined clients of crooked lawyers who gave their experiences through invitation to the SLCC’s recent Master Policy investigation, branding victims "frequent flyers" and claiming the ‘ground breaking’ investigation carried out by the University of Manchester research team into the infamous Master Policy insurance scheme for Scotland’s 10,000 solicitors, had ‘paid only lip service’ to duties the commission is supposed to carry out involving the monitoring of claims for financial damages made by members of the public against the growing ranks of crooked lawyers in Scotland.

David Smith, SLCC solicitor board member criticised ruined victims of crooked lawyers. Mr Smith, himself a retired solicitor who served with Edinburgh legal firm Shepherd & Wedderburn, said in incompetently censored emails to the SLCC's Chief Executive : "I have read through the Report and it is quite clear that it is of only limited value because of time (and funding ?) constraints and the fact that the claimants interviewed were all frequent flyers." Mr Smith went onto repeat the insults further, stating : "I suspect that when we go public we will be seen by the claimant lobby and consumer organisations to have achieved nothing and that we have paid only lip service to our monitoring role. Conversely I think LSS and the profession will think we have achieved nothing as the research has only focussed on the frequent flyers who have longstanding grievances against LSS/the profession."

SLCC Chief Executive Eileen Masterman branded participants in SLCC investigation as ‘biased’ but said nothing about how biased lawyers views were. Eileen Masterman, the SLCC’s Chief Executive joined in the criticisms against members of the public who had given up significant time and made huge effort to participate in the SLCC’s investigation of the Master Policy & Guarantee Fund, branding them ‘biased’, saying : “It has not been possible to interview a representative sample of claimants with regard to the Master Policy and it is very likely that the sample used is biased. Many of the claims the researchers were informed of are long standing. Without current data it is difficult to say whether the problems alleged are persistent and that pursuing a claim is currently as difficult as has been alleged by those claimants spoken to.”

SLCC board members think little of participants in Master Policy investigation. A member of the public who participated in the SLCC's sponsored survey hit back at Mr Smith's comments saying : "Oh well if that's what these people think of us then why are they still on the legal complaints commission and being paid for it ? Why did the SLCC ask for people to contact them in the first place if all that was going to happen was a steady stream of insults and the usual no action at the end of it ? I think the SLCC should be apologising to all of us at least and let us have a fair hearing instead of all this name calling."

He continued : "Wouldn't we be better with someone on this commission who respects what ordinary people have had to go through to try and get justice against a crooked lawyer because I’m sure Mr Smith and his friends will know very well that trying to claim against a crooked lawyer is impossible in Scotland and life is made very difficult for anyone who tries.”

Insulting comments against victims of crooked lawyers & consumer groups were expressed earlier in the year by solicitor & SLCC board member Margaret Scanlan. A senior official at one of Scotland's consumer organisations today expressed disgust at the revelations. He said : "I fail to see how these continuing poor attitudes expressed towards consumers by board members of the Scottish Legal Complaints Commission will help address the historical problems of poor and biased self regulation of Scotland's legal profession." He continued : "It is going to be almost impossible for the SLCC to work with the public if people realise the underlying attitudes at the commission are biased against consumers and the fact is we have already seen other commission members and senior staff make similar unnecessary slurs against particular members of the public and certain campaign groups. These kinds of comments do not belong in an organisation which was created at great public expense to independently investigate complaints against members of the legal profession in Scotland."

Law Society might be ‘requested’ by SLCC to hand over Master Policy documents but no power exists to compel them to do so. After twice branding victims of crooked lawyers who had participated in the SLCC Master Policy investigation as "frequent flyers", David Smith then went onto put forward a proposal that the SLCC should 'request' further documents concerning the Master Policy from the Law Society which had earlier been denied to the SLCC and their research team. I reported on the research team’s lack of access to documents in an earlier article here : 'Ground-breaking' investigation into Law Society's Master Policy insurance reveals realities of corrupt claims process against crooked lawyers

However, since the Law Society and its insurers Marsh UK who run the Master Policy, had refused to hand over required documents for the SLCC investigation, Mr Smith stated later in the same email (again blacked out by the SLCC) : "If we continue to get resistance from the LSS (Law Society of Scotland) we need to require them to supply reasons under Section s39(4) AND we should make the Scottish Ministers aware of our concerns and highlight the need for greater powers to make this monitoring role actually work."

Section 39(4) of the Legal Profession & Legal Aid (Scotland) Act 2007 laughably states that : “(4) Where a relevant professional organisation fails to provide information requested under subsection (3), it must give reasons to the Commission in respect of that failure.” which means the Scottish Legal Complaints Commission, for the all the £2 million pounds plus of taxpayers money lavished on it by Justice Secretary Kenny MacAskill, actually has no powers at all to require the Law Society hand over the real evidence of how claims against crooked lawyers are treated in Scotland, and thus indicates a complete failure of the law, allowing effective oversight of the legal profession in Scotland which the public had been promised in the 2007 LPLA Act.

A legal insider said today : "I am somewhat concerned that such sentiments are being expressed against the investigation because no one at the SLCC wants to hear the actual truth of just how corrupt the claims process is against a lawyer when the Master Policy is involved. Perhaps what we are seeing is an attempt by the SLCC to write off the work of the University of Manchester team because they actually did their job and produced a very good report which is difficult to refute from a factual standpoint.”

Jane Irvine, the SLCC’s Chair was asked for comment, and to review the censored FOI documents. Jane Irvine, the chair of the Scottish Legal Complaints Commission was asked to review the content of the heavily redacted FOI disclosures. However, she replied by way of an FOI review stating “The response provided to your FOI request was correct” and amazingly did not comment on the failure of the SLCC’s attempts at censoring information contained in the disclosures, which were justified with specific references to FOI exemption rules.

A leading FOI expert this afternoon said he thought the SLCC’s attempt at censoring references to participants in the survey as possibly being in violation of the law on FOI disclosures, and recommended the matter be sent to Scotland's Information Commissioner, Kevin Dunion for investigation.

He said : “Notwithstanding the fact the SLCC bungled the redactions on the documents disclosed under FOI, there is cause for concern some of those redactions have occurred simply to protect board members from the fallout of their own ill judged comments. That is not what exemptions under Freedom of Information legislation were designed to conceal. I think anyone may reasonably conclude under the circumstances that an abuse of the rules on the application of exemptions under FOI has occurred here.”

Personally I must say I am thoroughly disgusted by the SLCC’s conduct with regard to the investigation into the Master Policy and Guarantee Fund which was carried out on its own instruction, and with the help of the Scottish Government.

The report produced by the University of Manchester research team identified a great deal of suffering that has been caused by the policies of the Law Society and the insurers towards those who have attempted to lodge claims against their ‘crooked lawyers’ …. even identifying suicides of clients which have occurred, and all quite happily kept under wraps for all these years by the Law Society of Scotland . You can read more about that in a previous article I wrote here : Suicides, illness, broken families and ruined clients reveal true cost of Law Society's Master Policy which 'allows solicitors to sleep at night'

If ordinary members of the public are to be encouraged to participate in work involving the SLCC, surely they are to be treated with equality of arms and courtesy, which the SLCC has certainly showed the legal profession on many occasions. However, with what has been revealed to me in badly censored FOI documents (and I understand there to be much more) I see nothing more than a trail of anti client bias, which first reared its head earlier this year through comments made by fellow board member Margaret Scanlan, who branded claimants to the Guarantee fund as "chancers" and then went on to demand that consumer groups be excluded from surveys and investigations carried out by the SLCC.

Clearly the Scottish Legal Complaints Commission must now be cleaned up itself, and given a good dose of oversight to restore public confidence, if it can indeed be restored ...

Legal profession ‘afraid of losing profits & control of access to justice’ as Faculty of Advocates protest against McKenzie Friends for Scotland

The Faculty of Advocates oppose the introduction of McKenzie Friends in Scotland. The Faculty of Advocates have made an amazing claim to the Scottish Parliament that only lawyers should have access to the courts in Scotland, thus become the latest branch of Scotland's embittered legal profession to object to wide ranging reforms to access to justice in Scotland which include the introduction of McKenzie Friends to Scotland's courts, some FORTY YEARS after their introduction in England & Wales which has proved hugely successful for the interests of justice in the rest of the UK over the past four decades and for many people around the world who are also able to use McKenzie Friends in many jurisdictions.

Scotland's Advocates claimed only lawyers or advocates should have access to the court. The Faculty of Advocates said in their objections to the McKenzie Friend petition at Holyrood : "It would generally not be desirable for litigants to take part in the legal process without legal representation. It is accepted that there may be instances where the facts are so straightforward that it would appear at first sight that the claim could be dealt with by a party on his own. It is also accepted that there are occasions when a litigant either cannot afford to be assisted by a legal adviser, has chosen not to engage such assistance due to a lack of faith in lawyers in general, or simply is unable to find a lawyer who is willing to represent him."

The Faculty of Advocates then attempted to justify their stance by claiming people who represent themselves in court only have to do so because lawyers have told them their case 'is hopeless' : "In the last of these instances, on occasions it happens that clients receive advice that their case is hopeless and the client does not take the advice. It usually proves difficult for a client to persuade a different lawyer to act, when that advice has been given. It may be arrogant of the legal profession to presume that advice given by lawyers is correct. But often it is. The difficulty for the justice system is that a litigant who is intent on presenting a case will occasionally do so in an unfocussed way, perhaps missing a potentially good point while insisting on points of no merit."

You can read the Faculty of Advocate’s entire submission to the Scottish Parliament on the issue of McKenzie Friends, HERE

Clearly this is about the Faculty controlling access to justice, rather than being about the integrity of someone’s legal affairs and whether they have a presentable case in court or not. We are therefore left with little doubt the legal profession wants to retain its monopoly control over access to justice in Scotland, which is clearly in the Faculty's plan, in partnership with the Law Society of Scotland, who also oppose the introduction of McKenzie Friends in Scotland.

You can read my earlier report on the Law Society of Scotland’s resistance to the introduction of McKenzie Friends in Scotland’s courts here : 'Control Freaks' at Law Society say “No” to McKenzie Friends as Holyrood submission signals resistance to Lord Gill's civil justice review

A spokesman for one of Scotland's consumer organisations hit out today at the arrogance of the Faculty's claims, branding them selfish and obstructive, saying : "The Faculty's attitude towards access to justice in Scotland is astoundingly arrogant and it is clear they are desperately afraid of the impact that McKenzie Friends will have on their business, to the point they will use any means to justify the legal profession's control over who has access to a court in Scotland."

She continued : "What we all must remember is that access to justice is not about lawyers and advocates making money, it is about consumers being allowed to have a fair hearing in the eyes of the law. The introduction of the facility for court users in Scotland to choose a McKenzie Friend to assist the presentation of their case will bring us into line with the rest of the UK where McKenzie Friends have operated with great success for forty years, and have happily coexisted with solicitors & barristers work in the English courts, without all the fuss and protests we are now seeing from the Scottish legal profession prior to their introduction north of the border."

A Holyrood insider branded the Faculty's objections to McKenzie Friends as being ‘pathetic’, saying : " The Faculty are out to make sure people are forced to keep paying huge fees for advocates to appear in the courts on their behalf. Obviously they see McKenzie Friends as being competition to their services and that is why they don't want McKenzie Friends to be allowed in Scotland."

A client who recently found out his solicitor had asked for two further counsels opinions after the case had actually been settled said : “Everyone thinks getting an advocate to represent you in the Court of Session is a guarantee to win. It is not and if McKenzie Friends were available I would have taken one to begin with. I have wasted over £50,000 on fees for advocates who ended up just complicating the case which ended up having to be settled when the company I was suing got fed up of paying the legal fees for their lawyers who were just keeping themselves going in the court for no reason other than to be there. The two accounts I now have for legal services even after we had agreed to settle shows to me they were just out to make as much money as possible and were probably miffed we ended up settling where the lawyers hoped it would all go on for years.”

Scottish Court Service say Government and judiciary will have to work together on McKenzie Friends. While the Faculty of Advocates are smarting over the idea of introducing McKenzie Friends in Scotland's courts, which as they see will 'violate' their right to earn as much money as possible out of clients who are forced to use advocates & solicitors to pursue legal cases, the Scottish Courts Service stepped in with their own submission on the petition to bring McKenzie Friends to Scotland, confirming any action to introduce McKenzie Friends in the Scottish justice system would have to be a joint effort between the judiciary and the Scottish Government.

Scottish Court Service letter to Holyrood Petitions Committee. Neil Rennick, the Director of Policy & Strategy for the Scottish Court Service said : "I can confirm that any decision about the potential introduction of a “McKenzie Friend” facility within the courts would be a policy matter for Scottish Ministers in consultation with the judiciary.” Mr Rennick went onto clarify current the SCS current policy on McKenzie Friends in Scotland, which may well change after the expected recommendations by the Lord Justice Clerk Lord Gill, who will call for the introduction of McKenzie Friends in Scotland in his forthcoming Civil Court Review. Mr Rennick continued : "I note that you have written separately to the Scottish Government and that they have indicated that there are no current plans to introduce such a facility, pending consideration of any relevant recommendations from the current Civil Courts Review, chaired by the Rt Hon Lord Gill. No actions are therefore being taken by the SCS on this matter at this time. The SCS will contribute, at the appropriate time, to any consideration of the operational implications for the courts of matters arising from the Civil Courts Review."

A spokeswoman for the Civil Courts review team when approached for comment confirmed they would be dealing with the issue of McKenzie Friends in Lord Gill's civil courts review, which is hoped to be published on or around 30 September 2009.

The situation as currently stands where our access to justice is controlled and restricted by the legal profession on the grounds they have to make huge profits out of the public, cannot be allowed to continue. Therefore, given the obstructive attitude of Scotland's legal profession from the advocates and solicitors towards the introduction of McKenzie Friends in Scotland's courts, it is a must that Parliament and the Scottish Government move on the McKenzie Friend petition, and Lord Gill's expected recommendations, to ensure the Scots public have the right of access to Scotland's courts, and the choice to use a legal representative, or a McKenzie Friend, as is appropriate to their case.

You can read my earlier articles on the campaign to bring McKenzie Friends to Scotland HERE and I urge readers, and anyone experiencing difficulties in obtaining access to justice or access to legal representation to support the McKenzie friend Petition 1247 by contacting the Petitions Committee via their email at : petitions@scottish.parliament.uk

Hospitality in the land of the Scottish Legal Complaints Commission

Revelations from Scottish Legal Complaints Commission show no register was kept until August 2008. Documents released today under the Freedom of Information Act from the Scottish Legal Complaints Commission reveal that strangely, no register of interests had been kept at the joint taxpayer-legal profession funded law complaints body until August 2008, this despite the quango being in receipt of millions of pounds of taxpayers money while it awaited the eventual collection of the Penman complaints levy from the legal profession to keep the commission ‘ticking over’.

Jane Irvine, the SLCC’s Chair is the only board member to have declared any hospitality in the newly released register of Members Gifts & Hospitality. The papers released today from the Scottish Legal Complaints Commission show that only one member, the SLCC Chairman, Jane Irvine, has received (and declared) hospitality from the legal profession and organisations connected with it. However, the register did not reflect hospitality received by one of the SLCC’s lay board members, Dr Linda Pollock, who, the SLCC today confirmed, had alongside her husband, attended a ball given by an Edinburgh law firm.

In responding to queries on actual hospitality, the SLCC said today : “ In searching for the information requested I have ascertained that no Register existed prior to August last year. I have also sought the Members' recollection as to whether they had received gifts or hospitality and they have all responded that they have not.”

“In clarification of my request regarding hospitality Dr Pollock informed me that she had declared an invitation to the Chair who ascertained that the invitation was for Dr Pollock's husband to attend a Ball on 30 May 2008 by the law firm Gillespie Macandrew LLP. Dr Pollock attended as his partner.”

A legal insider earlier today commented on the revelations, saying : “The lack of a register being drafted for the start of members paid work at the SLCC, which began in January 2008 raises questions over what has been going on all this time, especially after the revelations that not even a members code of conduct existed until just a few weeks ago, and that only came about after the newspapers began to take an interest in the SLCC.”

He continued : “It all seems a bit of an amateur set-up at the SLCC, although a costly one at over 4 million pounds to solicitors and the taxpayer. Everyone knew what was needed to get this organisation going so why couldn’t all this have been in place when the money started pouring in ?”

Hospitality rules at Scottish Legal Complaints Commission. While there are no particular horrors contained in today’s disclosures from the SLCC, there are certainly some interesting organisations revealed to be keen to keep the SLCC ‘on side’, such as the Institute of Chartered Accountants, itself a self regulator, well known by many to have protected crooked accountants from serious complaints over the years, and also, perhaps a surprising note to some of an invite from the Medical Protection Society, who describe themselves as “… the leading provider of comprehensive professional indemnity and expert advice to doctors, dentists and health professionals around the world” which sounds almost familiar to how Marsh UK describe themselves, as the leading provider of professional indemnity to the legal profession. Others who regularly invite the SLCC over for bouts of socialising are the Law Society of Scotland, the Faculty of Advocates, and, dare I say .. the usual suspects.

Since there appear to be some issues of hospitality which are not indicated in the actual register itself, which the SLCC do not publish, I decided to publish this information today, which perhaps might give a clearer impression of the Scottish Legal Complaints Commission to those who may have to deal with it at some stage in relation to complaints about the legal profession.

Perhaps as there is so much hospitality on offer from the legal profession and those connected with it to the ‘independent’ SLCC, there should be a rolling register of interests kept updated regularly … hopefully without too much of the forgetfulness that has marked the SLCC’s previous attempts at transparency …

McKenzie Friends for Scotland gain support from ‘original McKenzie Friend’ while Scottish Government hint at delays to civil justice reforms

Scottish Parliament receives submission from ‘the original McKenzie Friend’ promoting McKenzie Friends for Scotland. IAN HANGER QC, the Australian barrister who participated in the 1970 McKenzie v McKenzie court case in London which led to the existence of the now widely used McKenzie Friend facility by thousands of unrepresented litigants in courts all around the world, has given a submission to the Scottish Parliament's Petitions Committee in support of Petition 1247 asking that Holyrood permit the use of McKenzie Friends in Scotland’s courts.

Ian Hanger QC urges Holyrood to permit the appearance of a McKenzie Friend. In his submission to the Parliament's Petitions Committee, Ian Hanger QC writes of the historical nature of the court case which began the existence of the 'McKenzie Friend : "I did not know when a humble clerk working for Jeffrey Gordon in 1969 and 1970, that when he asked me to look after Mr McKenzie I would be catapulted into history. For me it was just another day at the office. Quite frankly, I did not think that Mr McKenzie had a lot going for him but he was entitled to have his case put in the best possible fashion. I tried to help him do that. I am quite sure that had I been able to remain in court and quietly assist him, the case would not have gone on for half the time that it, in fact, did. I am sure that I could have curtailed the hearing to a few days."

The submission goes on to detail how McKenzie Friends operate in the Australian courts : "As you know, a lot of common law has developed around the doctrine of McKenzie Friend and certainly some of it is confused. In Australia, most of our courts have the power to permit a non-qualified person to, in effect, represent a litigant. Such a provision is specifically contained in the Acts or Rules of Court. But such a person is not a McKenzie Friend."

"A McKenzie Friend does not have a right to address the court. That right is confined to quietly assisting the unrepresented litigant. The Australian experience has been that it has worked successfully. I don't know of the Scottish experience, but certainly in Australia the courts are now greatly troubled by unrepresented litigants and, as the Chief Judge of our District Court has informed me - any help is appreciated."

"Of course, some McKenzie Friends step out of line. The Australian courts have had no hesitation in controlling such people. Obviously the McKenzie Friend should not be entitled to charge any fee for services. To do so, in Australia, would be breaching our Legal Services Acts. I cannot see that the floodgates would be opened by permitting, in appropriate cases, the presence of the McKenzie Friend to help the unrepresented litigant. In some cases you will get a brilliant law student who will provide enormous assistance to the Court."

Ian Hanger concludes his letter to the Scottish Parliament, stating : "I would urge the Parliament to permit the appearance of the McKenzie Friend."

Clearly the support of Ian Hanger QC, being the original McKenzie Friend is of considerable value to the effort to bring McKenzie Friends to Scotland, some FORTY YEARS after their first use in England & Wales. Thank you Ian !

A spokesman for a Scottish consumer organisation said last night : "I am delighted to read of the tremendous support given by Ian Hanger to the McKenzie Friend petition at the Scottish Parliament."

He went on : "As you know our organisation together with several other consumer groups have been supporting the petition at Holyrood, and I can only say that having the support of the original McKenzie Friend is a great bonus, which proves our efforts are justified in ensuring that consumers in Scotland have the same access to justice entitlements as those in England & Wales and all the other jurisdictions were McKenzie Friends have operated successfully for many years."

Several officials from other consumer groups joined in praise of the contribution from Ian Hanger, one senior official calling Mr Hanger’s submission "so invaluable to the McKenzie Friend debate in Scotland that it must lead to change in the Scottish courts so that the growing number of unrepresented litigants can avail themselves of a facility which has helped many people over the years in the sometimes intimidating court environment."

However, while the petition has received considerable support from consumer organisations, law reformers, campaigners, politicians, and the anticipated support of Scotland's Lord Justice Clerk Lord Gill, who is rumoured to be recommending the implementation of the McKenzie Friend facility in his forthcoming civil courts review, there are still apparently some obstacles to overcome.

As I reported on Wednesday of this week, the Law Society of Scotland have predictably opposed the moves to allow McKenzie Friends in Scotland's courts, claiming it should be for judges to decide on a case by case basis whether unrepresented litigants can have someone quietly assist them represent their own case.

The claims by the Law Society of Scotland against the implementation of McKenzie Friends, were however, quickly dismissed as "rubbish" and "pure nonsense" by several senior legal figures who are of the clear opinion the Law Society simply wants to keep out McKenzie Friends from Scotland's courts on worries of financial worries, fearing law firms & solicitors will lose business due to clients deciding to take on a McKenzie Friend instead of paying out tens of thousands of pounds on costly and poor quality legal representation.

A retired solicitor commented last night : "The Law Society can protest all they like about not introducing McKenzie Friends to Scotland, but we all know their arguments hold no water. The fact is the Society feels itself being threatened by the introduction people to the court whom it does not control nor who will bring in money to the legal profession."

He continued : "McKenzie Friends should be allowed in the court, and I think we are all in no doubt there will have to be some kind of legislation to guarantee that litigants can choose to have a McKenzie Friend, rather than allow this ridiculous idea of judges being given the responsibility of considering case by case requests from litigants for the use of a McKenzie Friend, which in my view could lead to repeated miscarriages of justice."

Justice Secretary MacAskill finally submitted his ambiguous three page reply to the Scottish Parliament. Scotland's Justice Secretary Kenny MacAskill has now submitted his response to the McKenzie Friend petition, stating : "... some important elements of the McKenzie friend facility are already available in the Scottish Courts, but the Scottish Government currently has no plans to further replicate the facility before consideration of the report and recommendations of the Civil Courts Review under the Lord Justice Clerk and (ii) the consultation on the eighth programme of law reform”.

Justice Secretary MacAskill’s submission gave limited examples of the rights of unrepresented litigants in Scotland’s courts. Mr MacAskill's submission described the use of McKenzie Friends in England & Wales, then went on to detail how the issue had [not] been handled in Scotland : “In Scotland differing views have been expressed by Outer House judges as to the competency of permitting a person assisting a party litigant to address the Court on the party litigant’s behalf. Many party litigants are assisted in conducting their litigation before the Court of Session by friends and acquaintances, who sit behind them in court."

"In Kinneil v Kinneil the Lord Ordinary, in granting an application for a wife to represent her husband who was otherwise unrepresented at the hearing, found that the Court of Session has a discretion to allow a lay person to speak for a party litigant. He emphasised, however, that this discretion should only be exercised in favour of allowing such representation in exceptional cases. Each case will depend on its own facts. In another case the Lord Ordinary, in the absence of any authority supporting that approach, found it to be incompetent, although he did acknowledge that such an arrangement might in certain circumstances prove to be of practical assistance."

Mr MacAskill ended his submission by stating : "The Scottish Government awaits the Review’s full consideration of responses received to these and other questions, and will similarly formulate preferred reforms to Scottish civil justice systems only in a coherent whole. In the interim, in advance of receiving the Review’s report and recommendations, the Scottish Government has no plans to introduce prematurely to the Scottish courts any further or additional elements of the McKenzie friend facility."

On an analysis of the Justice Secretary’s submission to the Petitions Committee on the McKenzie Friend issue, there is an overwhelming sense of the usual 'delay & do nothing' approach from the Scottish Government, which seems to typify this administration's lack of coherent & consumer friendly policies on justice issues in Scotland.

A legal insider last night branded the Scottish Government’s submission “a no brainer” saying “If anyone is in any doubt why Scots have so little rights in court and why reforms to the justice system are so slow, they just need to read through the three pages reply the Justice Department sent into Holyrood about McKenzie Friends.”

He continued : “A good good comparison would be where the Scottish Law Commission have been recommending much needed civil law reforms for years. However most of the SLC's recommendations have been ignored by successive administrations including the current Scottish Executive. I fear from the tone of the Executive’s response to Parliament on the McKenzie Friend petition, we are going go encounter more unnecessary delays to civil law reform in Scotland.”

While the Scottish Government continues to dither over the impending publication of Lord Gill’s civil courts review, the Scottish Court Service confirmed yesterday they would be replying to the Petitions Committee on the issue of McKenzie friends although a spokesman for the SCS when pressed for reaction on the Law Society of Scotland’s resistance on the issue, said : “We have no comment on the position being taken by the Law Society of Scotland.”

Clearly, with the groundswell of support from consumer organisations, court users, campaign groups, and even the occasional judge, and of course, the original McKenzie Friend himself, the Scottish Parliament must act and bring about clear decisive legislation to give Scots the entitlement the rest of the UK has had for forty years previous, to have a McKenzie Friend assist them in court, if so required.

You can read my earlier articles on the campaign to bring McKenzie Friends to Scotland HERE

Please support the ending of 40 years of discrimination for Scots access to justice, and help bring McKenzie Friends to Scotland’s courts.

'Control Freaks' at Law Society say “No” to McKenzie Friends as Holyrood submission signals resistance to Lord Gill's civil justice review

The Law Society of Scotland goes the ‘bloody minded route’ and tells Scots Parliament 'not to allow' McKenzie Friends in Scottish courts. The Law Society of Scotland has kicked off the Scottish legal profession's campaign of resistance against some of the recommendations to be made by Lord Gill in his forthcoming civil courts review, by telling the Scottish Parliament that McKenzie Friends should not be allowed in Scotland's courts.

This albeit predictable resistance from the Scottish legal profession to much needed civil law reform, comes despite the fact the facility that having a McKenzie Friend assist party litigants has proved so successful in England & Wales for FORTY years, it has lead to the practice being adopted in many other jurisdictions such as Australia, Canada, New Zealand and the USA, while being kept out of Scotland for no good or clear reasons.

The shock interference by the Law Society against expanding Scots entitlements of increased access to justice in our courts, flies in the face of the gathering momentum of Petition 1247 which was filed at the Scottish Parliament earlier in May 2009. The Petition, which aims to bring the facility of McKenzie Friends to Scotland's court system some 40 years after their introduction in England & Wales, will allow many Scots who do not have access to legal representation to share the success of thousands of litigants south of the border who since 1970 have used the extremely valuable facility of having an individual known as a "McKenzie Friend" to quietly and competently assist with the presentation of a litigant's court proceedings..

Law Society of Scotland 'do not see a requirement' for McKenzie Friends in Scotland. The Law Society of Scotland claimed in its submission to the Scottish Parliament's Petitions Committee today, that "The Committee do not see a strong driving requirement for the introduction of a Mackenzie friend facility in the Scottish courts. The current system allows a judge to consider whether or not it is appropriate for a litigant to have the assistance of a lay representative on a case by case basis." The Law Society then went on to grudgingly acknowledge there may be 'some benefit' of McKenzie Friends to court users in Scotland if they can't get a lawyer to take their case on : "There may be some benefit if a litigant cannot get legal aid and cannot afford a solicitor. The Committee acknowledge that Lord Gill (in his review of the civil courts) may make recommendations on the whether or not lay representatives may have a role. The Committee would welcome the opportunity of commenting further on the role of McKenzie friends once the review recommendations are available."

A legal insider who is unhappy with the Law Society's decision to oppose the introduction of McKenzie Friends in Scotland said : "Here we have more bloody mindedness from the control freaks at the Law Society where anything they don’t suggest themselves or is not within their direct control has to be opposed to the bitter end and at huge financial cost.”

He continued : "Why not have McKenzie Friends in Scotland ? They have been used in England & Wales for decades and haven't really impacted on legal business. If someone wants a McKenzie Friend by their side in court then let them have one. If they feel they need the services of a solicitor then they will approach one. The point is the choice should be there and it is not for the Law Society to tell people they can’t choose who they want with them in court."

A spokesman for one of Scotland's consumer organisations today branded the Law Society "greedy" and "bloody minded" over their opposition to the introduction of McKenzie Friends in the Scottish Courts.

She said : "The Law Society's opposition to McKenzie Friends being available to consumers in Scotland is ridiculous. It is laughable to suggest that our present civil justice system allows a judge to consider whether a litigant can have a lay representative assist them in court. There should be formal ground rules to set out court users entitlements rather than simply make a decision on a case by case basis, which is grossly unfair to litigants and the public at large."

She continued : "The Law Society are simply trying to protect their members business market from the threat of competition where if a litigant chooses to use a McKenzie Friend, in all likelihood they wont be hiring expensive legal representation which particularly in Scotland, doesn't always win the day in court as research has already shown."

"If consumers are faced with a choice of spending tens of thousands of pounds on poor quality legal services or hiring a McKenzie Friend for a few hundred pounds to help them present their own case that they know best, then I think you will find that many will choose to do away with their expensive solicitors and go down the McKenzie Friend route if they are confident enough of winning their own case.

Law Society tries to outmanoeuvre Lord Gill's impending civil court review recommendations by blasting McKenzie Friends petition at Holyrood. The opposition of Scotland's legal profession to the introduction of McKenzie Friends in our courts is no surprise to me. I expected as much after hearing the speech of Lord Gill at the Law Society's annual conference, where it was clear from the Lord Justice Clerk's comments that the money honey pot of Scotland's 'Victorian Justice system' model where legal firms have made millions from the complexity and aloof nature of Scotland's civil laws, would have to be significantly reformed. The Law Society of Scotland, basically being the legal profession's 'muscle' which maintains control over the current closed shop legal services market, and in effect, the legal profession's control over an individual's access to justice, cannot afford to allow such reforms, therefore a policy of undermining the proposals before they have been made, was inevitable.

As many have already pointed out, the Law Society of Scotland's attitude towards McKenzie Friends is more based on the fact that law firms & solicitors will lose out financially if consumers choose a McKenzie Friend, rather than throw away tens of thousands of pounds on the third rate legal services we are currently forced to rely on in Scotland. I know many people who would rather be party litigants with the help of a McKenzie Friend, than pay a few thousand pounds to a law firm who will probably string out their case for a few years, with no result at the end of it .. and why not .. why should ordinary Scots not have a choice to select their own legal representatives or legal assistance for their own case, when people in the rest of the UK can do so, and indeed, many other countries around the world ?

Testimony was given to the Petitions Committee earlier in May, by Margo MacDonald MSP, speaking on behalf of the McKenzie Friend Petition, which some readers may wish to remind themselves of by watching here :

Margo MacDonald speaks on the merits of introducing McKenzie Friends to Scotland’s courts.

Missing the deadline - Justice Secretary Kenny MacAskill has not decided to respond to the McKenzie Friends petition. While the Law Society of Scotland was not actually asked for their opinion on the introduction of McKenzie Friends, but gave it anyway, the Scottish Courts Service, Consumer Advice Scotland, and the Scottish Government were also asked for their opinions. However, the deadline of 10th August for responses has passed, and so far not even the Justice Secretary Kenny MacAskill has replied to the Petitions Committee, where today enquiries to Mr MacAskill's office were met with curt replies stating : "It is for the Cabinet Secretary to decide whether he wants to respond to this petition.". Mr MacAskill did answer questions from Margo MacDonald during Minister’s question time, back in May, which you can watch, here : Justice Secretary Kenny MacAskill replies to questions on McKenzie Friends for Scotland.

Major consumer organisations such as Which? support the introduction of McKenzie Friends for Scotland. While the Justice Secretary has oddly missed the deadline for replies to the McKenzie Friend proposals, there is ample support for the introduction of the invaluable service to Scotland's courts from consumer organisations such as Which?, Consumer Focus Scotland, several individuals and law reform campaigners such as myself, and even the UK's Ministry of Justice. You can view the written submissions to the Scottish Parliament's Petitions Committee on the McKenzie Friend proposals contained in Petition 1247 here : Written submissions for Petition 1247 (McKenzie Friends for Scotland)

Lord President of the Court of Session Lord Hamilton wanted delay to Parliament's consideration of McKenzie Friend proposals. Those opposed to the idea of rectifying the 40 year disparity between the Scots legal system and English Law, so far only seem to be the legal establishment itself in the form of the Law Society of Scotland, and a slight dithering from the Lord President, Lord Hamilton, who if he can't see that McKenzie Friends are introduced during the past 40 years (or at least during the years of his own tenure as a judge) I don't see any other way to expand Scots access to justice via the route of a McKenzie Friend other than introducing legislation to ensure there are specific rules and entitlements for all court users to avail themselves of the facility of using a McKenzie Friend if they so desire.

The Scottish Court Service and Citizens Advice Scotland were also asked today whether they had planned to reply to the Parliament's Petitions Committee on the issue of McKenzie Friends, however both had not replied by publication of this article.

You can read my earlier articles on the campaign to bring McKenzie Friends to Scotland HERE

Please support the ending of 40 years of discrimination for Scots access to justice, and help bring McKenzie Friends to Scotland’s courts.

27 year wait for class actions in Scotland ‘to be considered’ by Justice Secretary after publication of Lord Gill's civil justice review

The Scottish Government ‘may’ support the introduction of class action litigation in Scotland if Lord Gill's review recommends it. CLASS ACTIONS may finally be introduced to Scotland, on condition the issue is recommended for action by the Lord Justice Clerk, Lord Gill, in his long awaited Civil Courts Review, due to be published in the next few weeks.

Justice Secretary MacAskill 'will consider' Class Action proposals as part of Lord Gill's recommendations. In a letter to the Scottish Parliament's Petitions Committee, who were considering a public petition to introduce Class Actions to Scotland, a Justice Department official replying on behalf of the Justice Secretary Kenny MacAskill said : "The Review is looking at significant possible reforms to the civil courts system in Scotland. Several of these wider reforms have a direct bearing on whether the introduction of class action procedure is desirable and how it would work. Lord Gill’s recommendations on multi-party actions must be considered within this wider framework and the funding implications of the Review’s proposals. These issues include judicial resources, judicial case management, improving the operation of court procedures, how litigation should be funded, public funding, and use of alternative dispute resolution procedures."

"In the interim, the Cabinet Secretary for Justice has confirmed that he is prepared to consider class action procedure as part of Lord Gill’s wider recommendations. The Cabinet Secretary for Justice and Minister for Justice have also discussed the some of the options for class action procedure with the Dean of the Faculty of Advocates who has called for introduction of the procedure to enable claims to be raised against financial institutions amongst others."

A legal insider today who has been studying Scotland's exclusion of Class Action litigation in Scotland said today : "Given the Scottish Executive’s lack of progress on legal reforms, and the protectionist nature of the Justice Secretary towards reforms which he or the legal profession perceives as threatening business, or even threatening the profession itself, I am not all that confident that class actions will be introduced in Scotland to the degree this type of litigation exists in other countries. There will, I fear be unwarranted restrictions on who can mount class actions and who will be able to represent groups of litigants in court."

He continued : "While it is a fact the Dean of Faculty himself earlier this year called for class actions to be introduced in Scotland, Mr Keen was more interested in taking on the banks rather than anyone else at the time. Since the dean's words on this issue in January, a lot has happened to the banking sector, and I wonder whether he is now so keen himself six months on to pursue his rather 'limited' call for the introduction of class action legislation just to take on a few banks when in fact he should have called for the unfettered implementation of class action procedure at the time."

An consumer affairs insider this afternoon said he also feared that while class actions may be allowed in Scotland, there might be restrictions on how those types of actions could be raised, along with restrictions on who could represent class action litigants, and even perhaps restrictions on who exactly class actions could be raised against.

He said : “Our organisation is, as you know, fully supportive of Lord Gill’s civil courts review and we hope he will recommend that class action procedures be introduced. However, we would not like to see restrictions on who could represent groups of litigants involved in class actions. We feel that such reforms must be looked at and acted upon while also freeing up Scotland’s legal services market to open competition.”

He continued : “While it may be the preference of some within the legal profession to have class action cases handled by a select few advocates & legal firms, that is not what we would think of as a genuine reform. Great care must be taken to avoid introducing reforms such as class actions, or McKenzie Friends, and then bowing to the wishes of Scotland’s current closed shop legal services business model, by introducing restrictions on how those reforms would be implemented and utilised by court users and the public at large. We would not want to see a situation, where for instance some public bodies and institutions in Scotland gained an immunity from class actions being raised against them.”

The hopes of radical reform to Scotland's "Victorian justice system", including the implementation of class action procedures, rest with Lord Gill's civil court review. The two year civil courts review, conducted by the Lord Justice Clerk, Lord Gill, aims to reform Scotland's antiquated civil justice system, described by Lord Gill himself as being stuck in Victorian times. Lord Gill in his speech to the Law Society’s annual conference said : "The civil justice system in Scotland is a Victorian model that had survived by means of periodic piecemeal reforms. But in substance its structure and procedures are those of a century and a half ago."

"It is failing the litigant and it is failing society. It is essential that we should have a system that has disputes resolved at a judicial level that is appropriate to their degree of importance and that disputes should be dealt with expeditiously and efficiently and without unnecessary or unreasonable cost. That means that the judicial structure should be based on a proper hierarchy of courts and that the procedures should be appropriate to the nature and the importance of the case, in terms of time and cost."

Lord Gill, branded Scotland’s civil justice system a failure, concluding : “Scottish civil justice fails on all of these counts. Its delays are notorious. It costs deter litigants whose claims may be well-founded. Its procedures cause frustration and obstruct rather than facilitate the achievement of justice. Unless there is major reform and soon, individual litigants will be prevented from securing their rights, commercial litigants will continue to look elsewhere for a forum for their claims, public confidence in the judicial system will be further eroded, Scotland’s economic development will be hindered, and Scots law will atrophy as an independent legal system. The conclusions of our Review are as stark as that."

I am, of course, also supportive of Lord Gill’s civil courts review, and such important issues as the introduction of class action procedures, and also important access to justice issues such as the introduction of McKenzie Friends to Scotland’s courts. However as with all things legal in Scotland, there will no doubt be stubborn resistance from the legal establishment, who will lobby for the usual conditions and strings to be attached by the Scottish Government to such reforms, as my colleague in the consumer affairs arena indicates.

The Law Society of Scotland would certainly not want to fall victim to class actions from victims of crooked lawyers. I foresee that, for instance, bodies such as the Law Society of Scotland, and those connected with regulating the legal services market may seek to impede the implementation of class action procedures, upon condition they gain some kind of immunity, which would of course, be an unrealistic proposal for any impartial & honest person to accept … The trouble with that is though .. we don’t have too many impartial & honest politicians at the moment who might stand up to the lobbying efforts of public bodies and agencies seeking such immunities from the law.

Just imagine that local health trusts, or specific agencies of the Scottish Government, local government, and even industries might seek to lobby against the implementation of class actions in Scotland. How would the Scots public feel about that ?

The fact is that calls for the implementation of Class Action procedures in Scots Law have been made since 1982, with a recommendation along these lines being made by the Scottish Law Commission some thirteen years ago in 1996 who also presented draft court rules at the time.. However, in 2000, the Court of Session Rules Council decided that existing procedures were adequate enough, and the Scottish Law Commission’s recommendations were thus not implemented.

Now, here we are in 2009, over twenty seven years since class actions were called for in Scotland, yet class actions are still not allowed in our courts, demonstrating to me that even if Lord Gill does go the full hog and recommend their introduction, legislation will be needed to ensure class action litigants obtain a fair hearing, and are allowed access to legal representation of their own choice, rather than such legal representation being forced on them by the legal profession itself.

You can read more about Petition 1234, to introduce Class Actions to Scotland, here : Scottish class action procedure raised by Peter Brown on 12 January 2009 with written submissions on the petition appearing HERE

Petition 1234 calls on the Scottish Parliament to urge the Scottish Government to instigate a class action procedure or similar in Scots Law to correspond with the legal systems of many other countries including England and the United States. The background to the Petition can be read here : Background to Class Action Petition

So, this leaves us in the hands of Lord Gill, the Lord Justice Clerk, and the civil courts review once more. I hope the review will live up to the expectations of many, but I suspect a degree of political meddling will leave Scotland’s public coming up short again in terms of our access to justice compared to the rest of the UK …

High cost of protecting crooked lawyers brings jobs cuts at Law Society of Scotland while Legal Complaints Commission goes on recruitment drive

The Law Society is facing job cuts due to lawyers demands for cheaper annual practising certificate. The Law Society of Scotland was today branded “a bunch of expensive wasters” by solicitors, consumer groups and clients after the Society announced earlier this week it would be seeking redundancies at its headquarters at Drumsheugh Gardens, Edinburgh, where over 100 people are employed on everything from promoting the interests of the legal profession to protecting the ever rising tide of 'crooked lawyers' in Scotland from complaints by everyone from clients to even High Court judges.

The round of so far 'voluntary' redundancies, proposed by the Law Society of Scotland who are rumoured to be seeking savings of up to half a million pounds in its operating budget, was announced earlier this week, after the introduction of a pay freeze earlier in the year, coupled with restrictions on further ‘external recruitment’ after it became clear the current financial downturn was drastically affecting Scotland's legal profession and the profits of many legal firms (how sad), which led to calls from the membership for a reduction in the annual practising certificate payment by individual solicitors to the Law Society.

Current Law Society Chief Exec took over from Douglas Mill who is ‘blamed by many for the poor state of Scotland’s legal profession. The Society's Chief Executive, Lorna Jack, who replaced Douglas Mill, the former Chief Executive whose policies are being blamed by many for the high level of public antipathy towards Scotland's legal profession, said in the Law Society's Press Release : "The economic downturn is affecting our members who fund the Society through their subscriptions. In common with many firms our commercial revenue has decreased. We have to take appropriate steps to ensure that the organisation continues to manage its finances well and operates in a business-like and customer focused way.We are not alone in facing this difficult challenge but it is right and proper that the Society reflects current marketing conditions in its own business planning. I want to be sure that we work with and consult with staff which is why introducing voluntary redundancy is the right step to take at this time.”

Amid loud shrieks of laughter & disbelief from clients caught up in the Law Society's infamously corrupt regulatory process, Ms Jack went onto claim in the press release that the Law Society is still interested in 'delivering benefits for the public, Ms Jack continued : “Every element of our business has been re-examined in the planning process with a view to delivering benefits for the profession and the public in a cost effective way. We must retain the skills we need to do the job while reducing employment costs."

The current Law Society President Ian Smart failed to mention any measures for protecting clients during downturn. The Law Society of Scotland's current President, Ian Smart, speaking on the reduction of £100 on the practicing certificate fee to around £565, which is to be brought to the Law Society's Special General meeting on September 24 and voted on by those who are able to vote, said : “This year we have met a demanding objective to produce a significant reduction in the cost of the practicing certificate, but it has been achieved by carefully working through the budget and planning for 2009/2010. We are very aware of the impact of the recession on the profession and want to keep the cost of practice as low as possible and give our members as much advance notice as possible about proposed costs for next year so that they can plan accordingly.”

Mr Smart, however, played the dumb card when it came to clients best interests, failing to mention anything in that regard at all in his released statement, to no surprise of many, as we all know, clients dont actually count, what counts is profits for legal firms and income for the Law Society !

A spokeswoman for a consumer group countered the statement from the Law Society's Chief Executive & the President.

She said : "Even in the financial downturn, the Law Society still has a duty to protect clients interests – a duty which is clearly not being achieved. In reality there is little motive on the Law Society's part to deliver any benefits for the public which may impact on the profits of its members, whose interests always come first."

From my own experience, and from those of you who have informed me of your cases, the fact is that as things stand with legal services in Scotland, people have more consumer rights & protection when they purchase something from an impromptu street market than clients have when engaging a solicitor to handle their legal interests.

Despite Lorna Jack's claim the Law Society is still interested in delivering benefits for the public, anyone involved in the debate on regulating the legal profession understands that the lack of consumer protection against rogue solicitors is down to the Law Society of Scotland successfully keeping the issue of the client's interests within its own control, when only a fully independent regulator and separate legal services users authority to defend and promote the public's interests with regard to legal services in Scotland will actually help both clients and the legal profession to get along.

A senior solicitor from one of Edinburgh's leading law firms today commented on the Law Society's 'savings plans', calling them "an overpaid bunch of high living wasters carrying out another exercise at self preservation at the expense of the membership."

He went onto say : "If the Law Society want to make savings they could start with reducing the costs of the Chief Executive's office, which currently stand at around £300,000 per annum and at the same time get rid of some of these Director portfolios staffed with remnants from the Mill era, who are on well over £100,000 each per annum."

"I know many sole practitioners and small High Street legal firms across Scotland who can hardly turn a profit in this downturn, while the Law Society are employing packs of these highly paid and generally useless individuals who are in positions they themselves have created. There are also a few at the Society who as we both know are fixated with protecting rogue lawyers from serious complaints regarding their standards of service, which is not doing the profession any good in these times, where the promotion of better practice and consumer confidence would better serve us.”

He ended by claiming the only way to resolve the huge difficulties Scotland's legal profession faced was "to dissolve the Law Society of Scotland, hand responsibility of regulation to an independent regulator, and allow local bar associations to promote the rights of their own members, given the Law Society of Scotland had made such a mess of things."

I can certainly agree with some of those sentiments, although I'm not too sure about the part regarding local bar associations, as I have personally found some of those across Scotland to be just as corrupt as the Law Society itself. I have for instance, come across situations where a client of a local solicitor in a small community or lesser populated region of Scotland who is forced to take issue with the standards of legal service they have received, can find themselves excluded by every law firm in the local bar association when they are forced to undertake the impossible in trying to obtain the services of another legal firm to repair the damage their original solicitor has done to their legal interests.

The only way to overcome such an obstacle would, in theory be for the maligned client to go to another area of Scotland to find a solicitor outwith the sphere of influence of the local bar association in the client's home area. Now, under the present regime, where the Law Society of Scotland controls regulation and discipline, that is an impossible task, as thousands of Scots clients of solicitors have found over the years.

However, splitting up the Law Society's responsibilities (minus its powers of regulation) may assist consumers in general to obtain legal representation and at more competitive prices, while lifting a significant burden of costs from the membership of the legal profession, who are all paying for the Law Society to continue the lavish lifestyles of its Directors, Chief Executives and numerous Committees, which do little for anyone except themselves.

Scottish Legal Complaints Commission go on recruitment drive to assist board members ‘on the razzle’. While the Law Society of Scotland have announced cost savings, there is little thought of that at the Scottish legal Complaints Commission, as a recruitment drive gets underway for a Clerk to the Board of Commissioner (Ref CC1), a position which is intended to support the Board of Members in the process of decision-making, including arranging and running hearings and promoting consistency. The latest position at the joint taxpayer-legal profession funded law complaints body involves “managing the SLCC’s portfolio of work, hours of work and the determination of complaints” (that shouldn't be too difficult with some board members being out on the razzle from time to time), “with further support for the Chairing Member of the Board, the Board, the CEO and the Head of Investigations in providing and developing a high quality, efficient complaints handling service” - surely these claims are in jest, given the dismal performance of the SLCC to-date.

So, not a very taxing position by the sounds of it, and the salary is in the region of £35,088 per annum which is around £675 a week .. and at the rate the SLCC are botching up complaints investigations, the latest job offering sounds more like a thumbs twiddling exercise, mingled with the occasional 4 lines on a sheet of A4. Anyone who thinks they can manage that, and help whitewash a few crooked lawyers, well … apply now !

A legal insider expressed dismay at the latest recruitment drive at the SLCC, saying "How many people do this lot need to do their job when all they do is pass complaints back to the Law Society to investigate.The SLCC is a waste of time & money for consumers and the profession who are paying for it."

A client of a solicitor who has lodged a complaint with the SLCC and is currently experiencing severe difficulties in getting the commission to properly investigate their case said "Even if they have 500 people working at the SLCC all they will do is see to it that bent lawyers get off with a slap on the wrist or the usual complaints whitewash we get from the Law Society."

Its fairly obvious the legal profession is simply serving itself, and not the public. No matter what the Law Society and even the SLCC now do, they will both be tarnished with the reputation of being the corrupt self regulators the legal profession turns out for its own self interest, proving yet again, cleaning up Scotland's legal profession has never been needed more than it is today !

McKenzie Friends for Scotland backed by Ministry of Justice & Consumer Focus as Holyrood petition moves to end 40 year Scots access to justice delay

UK's Ministry of Justice & Consumer Focus support introduction of McKenzie Friends in Scotland. Evidence submitted to the Scottish Parliament's Petitions Committee by the UK's Ministry of Justice and Consumer Focus Scotland in favour of the McKenzie friend Petition 1247, demonstrates that ‘McKenzie Friends’ should be introduced in the Scottish Courts as a matter of urgency so that the rising numbers of members of the public who cannot afford or obtain legal representation in Scotland for a variety of reasons, can access the help & assistance of a 'McKenzie Friend' so they may handle their own legal affairs in Scotland's restrictive & unfriendly courts system.

Lord President Lord Hamilton – the only one so far to suggest more delays to the introduction of McKenzie Friends in Scotland. The written evidence so far lodged for Petition PE1249 - McKenzie Friends, has, with the exception of suggestions by Lord Hamilton to defer parliamentary consideration of the petition, been mostly supportive of the aim to introduce the facility of having a 'McKenzie Friend' accompany party litigants in Scotland's courts, a facility which has existed in England & Wales for FORTY YEARS. However, the steady stream of support for Petition 1247 from consumer organisations and law reform campaigners, is raising questions on just why Scottish politicians have done nothing for the past forty years to bring equality to rights of Scottish court users, while the rest of the UK has enjoyed such an invaluable courtroom facility for so long.

You can view & download submissions to the Scottish Parliament in support of Petition 1247, from the Scottish Parliament’s website HERE or alternatively HERE

You can watch earlier video coverage of the Petitions Committee debate on the McKenzie Friend petition, here : Margo MacDonald MSP speaks at Holyrood on the merits of McKenzie Friends and my earlier reports on the progress of Petition 1247, to bring McKenzie Friends to Scotland, are here : Bringing a McKenzie Friend to Scotland

UK's Ministry of Justice supports advantages of having a McKenzie Friend in court. Bridget Prentice MP, the Parliamentary Under Secretary of State for Justice, writes : "The main advantage of a McKenzie Friend is to further the interests of justice by achieving a level playing field and ensuring a fair hearing. This is because a McKenzie Friend is allowed to quietly assist a Litigant in Person at hearings by taking notes, making suggestions, and giving advice to the Litigant in Person when called upon. That is why there has to be very compelling reasons for the court not to allow a Litigant in Person to have a McKenzie Friend. However a McKenzie Friend has no right to conduct litigation and has no right of audience.

The Under Secretary of State went on to say that : “Most unrepresented litigants cannot afford lawyers and to ensure that justice is done, it is vital that unrepresented litigants can access help to comprehend the law and procedure.” You can read the full Ministry of Justice letter to the Petitions Committee HERE

Consumer Focus Scotland also supports the introduction of McKenzie Friends. Martyn Evans, Director of Consumer Focus Scotland said in his letter to the Petitions Committee : "Consumer Focus Scotland therefore supports the introduction of McKenzie Friends in Scotland. The SCC made such a representation in its response to the civil courts review. We see the introduction of such a measure as offering valuable support to unrepresented litigants. By providing moral support or indeed offering guidance, for example suggesting questions for the litigant to ask, a McKenzie Friend may help the litigant t present their case better, which we see as an advantage not only to the unrepresented litigant but also to the court and the other party in the litigation.

Mr Evans went onto say : "The value of a McKenzie Friend has been recognised by the President of the Family Division of the Judiciary of England and Wales, whose guidance on McKenzie Friends sates that allowing a McKenzie Friend to assist a unrepresented litigant 'will often be of advantage to the court in ensuring the litigant in person [unrepresented litigant] receives a fair hearing. The presumption in England and Wales is strongly in favour of McKenzie Friends being allowed. We would like to see such a presumption adopted in Scotland". You can read Consumer Focus Scotland’s submission to the Petitions Committee HERE

Law Society of Scotland are rumoured to be planning to obstruct introduction of McKenzie Friends in Scotland. While the petition has received support from consumer organisations, justice officials from south of the border, and some politicians, the Law Society of Scotland is rumoured to be 'very angry' over the proposals, worried that its member legal firms, who are already short of business, will lose out to members of the public 'wising up' to the advantage of presenting their own case, assisted by a McKenzie Friend, rather than trying to hire solicitors and expensive legal teams, who claim huge experience on all things legal but will invariably lose their client’s case, albeit a few years and tens of thousands of pounds down the line.

A legal insider today accused the Law Society of Scotland of 'plotting against the introduction of McKenzie Friends', saying : "Its all about money as it always has been. The Law Society know its not in their members financial interests to allow the use of McKenzie Friends in Scotland and this is solely why McKenzie Friends have been kept out of Scotland's courts for the past forty years. Anyone who doesn’t realise that is living in cloud cuckoo land."

He went on : "I have heard there has been debate within the Law Society whether to obstruct the introduction of McKenzie Friends to Scotland. I would therefore encourage campaigners to be on their guard against any dirty tricks from the legal profession to stall progress on this issue, even if Lord Gill does recommend McKenzie Friends be introduced as we all expect him to do."

Will Justice Secretary Kenny MacAskill allow McKenzie Friends in Scotland’s courts, or play for time for more delays and more solicitors profits ? Well, little surprise these proposals are upsetting the Law Society of Scotland and lawyers who are more concerned with making money than giving the public access to the courts we all pay for through our taxes ... but the market protectionism of the legal profession in trying to control ordinary people's access to justice cannot be allowed to continue. McKenzie Friends must be introduced to Scotland, indeed, as a matter of urgency, and those who are responsible for access to justice being held back for these past forty years must face the questions, and perhaps be thrown out of the justice system for their ill deserved hold over the public's right to have a fair hearing in the courts we pay for.

It is however, clearly the case that Scotland's courts and the judiciary cannot be trusted on access to justice reforms such as the introduction of McKenzie Friends to Scotland's courts. Simply if they could be trusted, we wouldn't be here forty years later writing about it and asking the Scottish Parliament to legislate to introduce increased rights of access to justice for Scots, because of the fact that Scotland's courts themselves have failed to do so.

The Scottish Parliament must therefore legislate to allow the use of McKenzie Friends in Scotland’s courts, rather than leaving it up to the judiciary, who if they could I’m sure, would with the rest of Scotland’s closed shop legal profession, cook up another forty year delay to implementation of wider access to justice in Scotland. That simply will not do.

Allowing McKenzie Friends in Scotland’s courts, and indeed, opening up the rights of audience system where your legal representative doesn’t need to be a member of the Law Society of Scotland or Faculty of Advocates, will lose the current Law Society controlled legal profession a lot of cases. That is a good thing for the public and a good thing for justice. Justice, and the public’s access to it should not be about profit and wealth, it is about Human Rights and the right to a fair hearing of a matter of law affecting a person’s life.

Support the introduction of McKenzie Friends in Scotland, and make your feelings known on this to the Scottish Parliament’s Petitions Committee. You can support the McKenzie friend Petition 1247 by contacting the Petitions Committee via email at : petitions@scottish.parliament.uk