Lord Hamilton’s plan for McKenzie Friends criticised. LEGAL CHIEFS from WHICH?. the well known consumer organisation who are playing a strong role in bringing the McKenzie Friend to Scotland, have raised serious questions over plans announced last week by Scotland’s top judge, Lord Hamilton, to finally allow McKenzie Friends in Scotland’s civil courts, some forty years after the well known courtroom helper to many, the ‘McKenzie Friend’, came into existence in England & Wales, during a 1970 London court case (McKenzie v McKenzie).
While initially welcoming Lord Hamilton’s proposal, to bring forward an Act of Sederunt to amend the Rules of the Court and thus finally allow McKenzie Friends to be used in Scottish courts, Legal chiefs at Which? expressed serious concerns over Lord Hamilton’s now widely criticised plan to require a McKenzie Friend have “relevant experience”, which has for now gone undefined but raises fears from many it means a legal background. I reported on Lord Hamilton’s plans for McKenzie Friends in Scotland, last week here : Exclusive : McKenzie Friends for Scotland ‘are go’ as Lord President yields to Holyrood access to justice petition for Scots court users
Deborah Prince, Head of Legal Services for Which? said in a letter to the Scottish Parliament : “We do however wish to note several concerns about the proposed implementation of McKenzie Friends and would ask that the Petitions Committee consider these in their deliberations. Namely, we are concerned that Lord Hamilton proposes a McKenzie Friend should be required to have 'relevant experience' and not be related to the litigant. We see absolutely no reason why this information should be requested or relevant in granting permission for a McKenzie Friend. We do not believe, for instance, that a husband or wife should be prevented from acting in this capacity, where the litigant feels this would be helpful. Therefore the proposal that the MF should have no interest in the case is extremely unhelpful.”
Ms Prince continued : “We also wish to take issue with the Lord President's phrase, 'quietly advising the party litigant on (i) points of law and procedure', as we feel this needs to be qualified, perhaps 'quietly advising the party litigant on points of law and procedure if/where this is appropriate'.”
The Head of Legal Services for Which? went onto query why the Lord President appeared to be intentionally refraining from even using the phrase “McKenzie Friend” within his plans, an omission which many inside & outside the legal establishment see as bringing in an unnecessary complication to the debate.
Ms Prince commented : “We note that Lord Hamilton does not use the term 'McKenzie Friend', preferring to refer to 'lay assistant'. We believe the term McKenzie Friend describes a specific function which is well understood in several countries, including England and Wales and Northern Ireland, and think it would be clearer and make more sense if the term was also adopted in Scotland.”
Clearly, Lord Hamilton, and also the Justice Secretary, Kenny MacAskill are reluctant to use the phrase “McKenzie Friend” for some reason … could it be because the legal profession in the form of the Faculty of Advocates & Law Society of Scotland don't actually want McKenzie Friends to operate in Scotland ?
Since the publication last week of Lord Hamilton’s plans for the introduction of McKenzie Friends, many experienced McKenzie Friends, consumer groups and even solicitors have expressed reservations over what appear to be restrictive conditions being placed on McKenzie Friends in Scottish courts, while McKenzie Friends in England & Wales, as well as other international jurisdictions operate without the overly harsh conditions Lord Hamilton is seeking to impose on the Scottish version of a McKenzie Friend.
One solicitor studying the Lord President’s proposals said he felt the conditions proposed by Lord Hamilton made the McKenzie Friend system “unworkable in Scotland”.
He said : “I think we all appreciate there have to be rules by which a McKenzie Friend operates, however I feel Lord Hamilton is trying to kill any chance of people developing experience as McKenzie Friends, while also severely limiting who could act in the McKenzie Friend role.”
He continued : “It almost appears from Lord Hamilton’s proposals as if he wants to curtail anyone other than someone with a legal background from acting as a McKenzie Friend. While I’m sure the court may welcome such an idea, it may well be the party litigant wishes their spouse, partner or a professional from a field relevant to their case to be their McKenzie Friend. I therefore fear Lord Hamilton’s intentions as per his letter to the Scottish Parliament appear to be an unjust restriction on who can appear as a McKenzie Friend, noting there are less restrictive practices in English courts.”
The thorny issue of remuneration for a McKenzie Friend which Lord Hamilton appears determined to prevent, also takes a battering as case law in England has already established McKenzie Friends can charge for their services, an issue taken up HERE
Forty years to bring McKenzie Friends to Scotland indicative of law reform delays. I would remind readers, when it comes to legal reforms in Scotland, the legal establishment have a habit of putting the brakes on reforms to benefit the consumer, of which the McKenzie Friends issue is but one casualty of many inequalities between Scots Law & the rest of the UK, highlighted in an article I published last year showing delays of 19 years for reforms to small claims law in Scotland, a 17 year delay to rights of audience reforms, a 27 year delay to introducing class actions to Scots Law (still being discussed !), a 17 year delay to regulatory reform of complaints against solicitors with the introduction of the Scottish Legal Complaints Commission (now a failure), and the staggering 40 year delay in introducing McKenzie Friends to Scotland.
I think its fair to say that anyone could conclude from the incessant delays in reforming anything legal in Scotland, there is wilful obstruction on the part of the legal establishment to give Scots a fairer deal when it comes to access to justice, and to back that up, just read Lord Gill’s Civil Courts Review, which depicts Scotland’s Civil justice system as being stuck in the dark ages. Lord Gill also supports the introduction of McKenzie Friends as I reported last year, here : Scots Law 'shake up' as Lord Gill’s Civil Courts Review supports McKenzie Friends, Class Actions & wider access to justice for all
Which? ended their letter to the Scottish Parliament proposing the wider publication of the McKenzie Friend facility by the Scottish Courts Service, a most welcome proposal, as many people still report courts across Scotland are out of step after Lord Woolman’s November 2009 ruling granting the first use of a McKenzie Friend in a Scottish Civil Court action.
Which” said : “We are also keen to see the right to a McKenzie Friend well publicised, for instance on the Scottish Courts website, and litigants advised in advance that they will now have this right. Staff should also be fully informed of this change, so that they can advise litigants accordingly.“
The Lord President & Justice Secretary have so far refused to make any further comment on the issue, however some MSPs have backed calls to question Lord Hamilton’s stated plans for McKenzie Friends, when the Scottish Parliament’s Petitions Committee next hears Petition 1247