Scotland's Lord President Lord Hamilton. FORTY YEARS after McKenzie Friends entered into the English Courts system, Scotland's Chief Judge Lord Hamilton, the Lord President, is to be asked by the Scottish Parliament's Petitions Committee to implement McKenzie Friends in Scotland's courts, after growing calls from MSPs were made at this week's public petitions hearing on Petition 1247 (McKenzie Friends for Scotland) in support of implementing the long held right in England & Wales for courtroom assistance for unrepresented litigants.
Scottish Judge Lord Woolman claimed McKenzie Friends were a matter for Parliament, not the Court. However, while Lord Hamilton is to be asked by Parliament on the implementation of McKenzie Friends in his own courts, I can exclusively reveal the first test request of a McKenzie Friend since the publication of Lord Gill's Civil Justice Review last week FAILED after High Court judge Lord Woolman rejected a request for a McKenzie Friend last Friday, made by a party litigant in a 'high value' damages case. It transpires this was the second refusal by the Court to allow the request of appearance of a McKenzie Friend in the same case, the Court claiming on this latest occasion that this was a matter for, and currently being discussed by, the Scottish Parliament.
Lord Gill’s recommendations on McKenzie Friends were tossed aside by fellow judges the day after publication. The courts resistance to allowing a McKenzie Friend, even apparently against the recommendations of Lord Gill’s Civil Courts Review, sets the scene for an extraordinary tussle between the Scottish Parliament and Scotland's Judiciary over the Courts responsibilities to ensure fair & equal access to justice for both sides, with, on one side, the Scottish Parliament Petitions Committee seeking to persuade Lord Hamilton to introduce McKenzie Friends in Scotland's Courts, and elements of the Judiciary on the opposing side, claiming it is a matter solely for the Parliament, and nothing to do with the court.
While it appears Scotland's judiciary, along with the Law Society of Scotland, Faculty of Advocates, and even the Scottish Government are all opposed in some way or another to the introduction of a McKenzie Friend to assist party litigants, the English courts introduced the McKenzie Friend facility without much problem some forty years ago.
The English legal system, along with their courts and legal services market, did not collapse into anarchy, as the Scottish legal profession seem to be claiming will happen if McKenzie Friends were introduced in Scotland. Rather it appears the driving force behind objections from the Scottish legal establishment to the introduction of McKenzie Friends, are solely based on the fact solicitors will lose fees if the public decide to take a McKenzie Friend along with them to court, instead of a costly 20,000 plus solicitor & legal team who may very well end up ruining their case as the statistics seem to indicate in Scotland's currently poorly served legal services market.
Now, to the report of this week's Petitions Committee hearing.
Holyrood's gem, Margo MacDonald speaks in support of McKenzie Friends petition, joined by the petitioner's constituency MSP, Murdo Fraser.
Margo MacDonald spoke of a McKenzie Friend 'being a right' in England & Wales. Margo MacDonald attended this week's Petitions Committee hearing and spoke further on the advantages of allowing McKenzie Friends in Scotland's courts. Margo MacDonald said : "This is a system of support for litigants in courts which has been running successfully in England for a long time. It seems to offer a greater level of support and a feeling of security for many people going into court to plead for themselves. The McKenzie Friend does not plead directly for them, the McKenzie Friend offers advice quietly given perhaps hands over relevant papers at the relevant time perhaps back up work"
"I’ve looked at the response from Lord Gill because it was referred to the Faculty of Advocates who said 'we will wait to see what Lord Gill's review says' and he's not all that keen, but I think most parts of the Scottish legal establishment are not all that keen on having lay people in court and they are very very careful about it"
"Now I think they do so for reasons I approve of in they want to maintain their very high standards of advocacy and protection of the client in the Scottish courts but in this one i think we could take a leaf out of what happens in the English courts and add a greater level of support for litigants who may be rather overawed by court procedure"
Margo MacDonald also reminded the Petitions Committee that having a McKenzie Friend in England & Wales was a right, and not something which should be under the sole approval of a Sheriff or the court, stating : "Lord Gill I think suggests it should be up to the sheriff to decide whether or nota McKenzie Friend would be allowed to be alongside the litigant whereas in England I think they have a right to be there"
Scottish Conservative Murdo Fraser MSP also supports the introduction of McKenzie Friends in Scotland. Murdo Fraser, attending the Petitions Committee in support of the McKenzie Friends Petition said "Mr MacKenzie is a constituent of mine and I'm happy to be here to support the petition because I actually agree with everything Margo MacDonald has just said."
He continued :"Can I say I think the proposal from Mr MacKenzie is a very reasonable proposal and makes a sensible suggestion. The McKenzie friend is there to provide assistance to a party litigant. It was interesting to read the response on the Civil Courts Review which very much majored on the issue of whether the McKenzie Friend should be given rights to be heard in court. Now as I understand from Mr MacKenzie that is not the issue. He is not actually seeking for the McKenzie Friend to be heard in court. All he is seeking is the right of a party litigant to bring somebody with them to sit beside them and provide them with assistance."
"There is nothing I read in the representations that really strongly argue against that. The proposal is supported by Which?, the Scottish Consumer Council and Money Advice Scotland. I think it would be a fairly simple thing to introduce and I think it would be very much to the benefit of party litigants and improve the justice system."
Nigel Don MSP, Petitions Committee member and Parliamentary liaison officer to Kenny MacAskill Nigel Don said "Can I first recognise that previous contributors have brought out the distinction between those who are there as a friend and those who are there as a right of audience which is one I wanted to make sure we covered."
He continued : "It does seem to me from everything so far that I've heard this is something the court could introduce themselves. I don't think it took Lord Gill to say it would be a good idea. In fact I think he has gone beyond McKenzie Friend as you said, and therefore I wonder whether in fact the first person we should write to is actually the Lord President because it is he who runs the courts and ask him whether there are any plans within the courts system to alter their practice because it is he who presides over them as the government doesn't actually deal with this."
"We might secondly want to write to the government asking its attitude but I think we should start by asking the Lord President if whether he feels there is something he can do. I think he can but he is the judge of that and whether he is minded to do so."
By way of response to that, Margo MacDonald pointed out the precedent of having a McKenzie Friend in Scotland may have already been established in the Scottish Land Court
Petitions Committee member Bill Butler MSP (Scottish Labour). Bill Butler said "Just to say I agree with everything that been said. We have some quotes from Lord Gill's review where he's very careful with the phraseology he uses or employs, he's for it and in certain circumstances a person being able to address the court on behalf of a party litigant. I do think we should follow Nigel’s suggestions and write to the government asking if they will come on board."
While the Petitions Committee has agreed to write to Lord Hamilton in the terms specified, in all honesty I do not think Lord Hamilton will budge on the issue of McKenzie Friends, or indeed many of the other reforms in Lord Gill’s Civil Courts Review, which appear to be on the ‘watering down list’ at the Scottish Government’s Justice Department. Even if the Lord President does manage to do something on McKenzie Friends without the need of a legislative push, we can be assured there will be a set of intolerable conditions that no English court, or indeed any court in other national jurisdictions where McKenzie Friends exist, would accept.
Justice Secretary Kenny MacAskill blamed Lord Hamilton for delays in rights of audience approvals. We only need to look back to how the Lord President and the Scottish Government handled the introduction of wider rights of audience, via Sections 25-29 of the Law Reform (Miscellaneous Provisions) Scotland Act 1990, where after about ten years of the Association of Commercial Attorneys filing applications for rights of audience, a blame game broke out between Justice Secretary Kenny MacAskill and Lord Hamilton over who was delaying longer than the other, which I reported on earlier, here : Justice Secretary MacAskill blames Lord President for delays in ‘access to justice’ applications row and which you can watch via video clip, here :
The Blame Game : Kenny MacAskill piles blames for access to justice delays on Lord Hamilton.
McKenzie Friends for Scotland should be introduced without further delay. However, given the continuous resistance from the legal profession and the courts system itself, I feel there must be legislation to ensure there are proper rules laid down on the use of McKenzie Friends, and the right of an individual to request and receive the services of a McKenzie Friend laid down in no uncertain terms to the court, a right that people in the rest of the United Kingdom enjoy.
You can read my earlier reports about McKenzie Friends and the campaign to introduce them to Scotland's courts system, here : McKenzie Friends for Scotland