McKenzie Friends for Scotland are coming to Sheriff Courts. SHERIFF COURTS across Scotland will shortly see the formal introduction of McKenzie Friends or “Lay Assistants” to assist unrepresented party litigants in civil law cases after the Sheriff Court Rules Council released a statement confirming its members, mostly appointed by Scotland’s Lord President, Lord Hamilton, have accepted the introduction to Scotland's Sheriff Courts of the popular non-lawyer courtroom helper which has existed in the English legal system for some four decades.
Among the members of the Sheriff Court Rules Council are officials from the former Scottish Consumer Council, now renamed Consumer Focus Scotland, who backed the introduction of lay assistants.
A spokesman for the Sheriff Court Rules Council confirmed McKenzie Friends are on their way to Scotland’s Sheriff Courts, saying : “I can advise you that the Sheriff Court Rules Council’s Working Group met on 16 June when it considered the proposed use of a McKenzie Friend in civil proceedings in the sheriff court. The Group agreed that provision be made in the rules along the lines of those recently made by the Court of Session. These rules have now been instructed and it is hoped they will be available in time for consideration by the Council at its next meeting on 6 August.”
Scotland’s Lord President Lord Hamilton recently enacted McKenzie Friends in Court of Session. The move to introduce McKenzie Friends to Scotland’s Sheriff Courts was necessary after the recent decision by the Court of Session Rules Council & Scotland’s Lord President, Lord Hamilton to formally introduce McKenzie Friends to Scotland’s highest court, after a long running petition to the Scottish Parliament on the issue highlighted the lack of lay assistance in Scottish Courts while English courts, and indeed many international jurisdictions allowed the use of lay assistants for the growing numbers of unrepresented party litigants.
Court of Session judge Lord Woolman granted Scotland’s first civil law McKenzie Friend in late 2009. During the course of the Scottish Parliament’s consideration of the McKenzie Friend petition, one of Scotland’s longest running civil claims actions, M.Wilson v North Lanarkshire Council & Others (A1628/01), overtook events at Holyrood and introduced Scotland’s first civil law McKenzie Friend in the Court of Session, granted by Lord Woolman, making the decision to introduce McKenzie Friends to general use in the Court of Session and lower Sheriff Courts, a formality, albeit one taking the best part of a year to complete.
Lord Gill proposed McKenzie Friends in Civil Courts review. Progress to finally bring lay assistants to Scotland’s civil courts was helped considerably by McKenzie Friends being recommended by Scotland’s Lord Justice Clerk, Lord Gill who had spent considerable time on the issue of lay representation as part of the two year Civil Courts Review. Lord Gill had also recommended a ‘super McKenzie Friend’ with a right of audience, enabling a lay assistant to address the court on behalf of party litigants, a proposal now part of the Legal Services (Scotland) Bill, which I recently reported here : McKenzie Friends from today in Court of Session, Lord Gill’s ‘super’ McKenzie Friend with rights of audience proposal goes to Holyrood
I will report further on the McKenzie Friend issue when the Sheriff Court Rules Council publish more details on their draft rules and timescale for formal introduction.
Background of the Sheriff Court Rules Council :
Membership of the Council
The Sheriff Court Rules Council (the Council) was established in its current form by Section 33 of the Sheriff Courts (Scotland) Act 1971. Members of the Council are appointed by the Lord President. Membership comprises two sheriffs principal, three sheriffs, one advocate, five solicitors, two sheriff clerks and two lay members. Lay members should have a knowledge of the working procedures and practices of the civil courts, a knowledge of consumer affairs and an awareness of the interests of litigants in the sheriff courts. The Lord President consults the Minister for Justice before appointing lay members. The membership is completed by one person appointed by the Minister for Justice, who appears to the Minister for Justice to be qualified for such appointment. This position is currently held by the Head of the Civil Justice Division & International Division, Scottish Government Justice Department Civil and International Group.
The current members of the Council are:
Appointed by the Lord President for the period 21 January 2008 to 20 January 2011:
- Sir Stephen S T Young Bt QC, Sheriff Principal of Grampian, Highlands & Islands (Chairman)
- James A Taylor QC, Sheriff Principal of Glasgow & Strathkelvin
- Michael J Fletcher, Sheriff of Tayside, Central and Fife at Perth
- Craig Scott, Sheriff of Glasgow and Strathkelvin at Glasgow
- William Holligan, Sheriff of Lothian and Borders at Edinburgh
- Mr Simon Di Rollo QC, Faculty of Advocates
- Mr Joseph d’Inverno, Solicitor-Advocate, Edinburgh
- Mr Fraser Simpson, Solicitor, Glasgow
- Mr Gregor Murray, Solicitor, Dundee
- Ms Clair McLachlan, Solicitor, Glasgow
- Mr Stephen Brand, Solicitor, Dundee
- Mr Alan Johnston, Sheriff Clerk’s Office, Glasgow
- Mr Roland McMillan, Sheriff Clerk, Dundee
- Ms Sarah O’Neill, Scottish Consumer Council
- Ms Rachel Smith, In Court Advisor, Aberdeen
Appointed by the Minister for Justice:
- Mr Colin McKay
Functions of the Council
These functions are defined in Section 34 of the Sheriff Court (Scotland) Act 1971. The function of the Council is to review the procedure and practice in civil proceedings in the Sheriff Court. In the light of that review, the Council prepares draft rules and submits them to the Court of Session for approval. The rules submitted to the Court of Session are designed to regulate and prescribe procedure and practice. The review of procedure and practice is an ongoing process. The Council prepares and submits to the Court of Session, draft rules designed to deal with any matters relating to the Sheriff Court.
The Court of Session, having made any modifications it thinks expedient, makes an Act of Sederunt embodying the rules. To assist it in the discharge of its functions, the Council may invite representations on any aspect of the procedure or practice in civil proceedings in the Sheriff Court. The Council considers any representations received. These can be in response to an invitation (e.g. in a consultation paper) or in another manner (e.g. by correspondence or having been raised by a member of the Council).
Power of Court of Session to Regulate Civil Procedure in the Sheriff Court
This power is defined in Section 32 of the Sheriff Courts (Scotland) Act 1971. The Court of Session, by Act of Sederunt, regulates and prescribes the procedure and practice to be followed in any civil proceedings in the Sheriff Court.Before making an Act of Sederunt, the Court of Session consults the Council and takes into consideration their views, unless the Act of Sederunt embodies draft rules submitted to the Court of Session by the Council.
You can read my earlier coverage of the campaign to bring McKenzie Friends to Scotland, here : McKenzie Friends for Scotland : The story so far