Court grants second 'back seat' McKenzie Friend in case against Edinburgh law firm Tods Murray as Lord President’s claims to Parliament questioned

Lord Woolman grants second use of a McKenzie Friend in Scotland. AFTER FORTY YEARS of McKenzie Friends being kept out of reach of Scottish courts, a policy which was quietly broken by Lord Woolman's mid November ruling in Wilson v North Lanarkshire Council & Simpson & Marwick granting Scotland's first use of a McKenzie Friend, the same judge, Lord Woolman has now allowed a second use of a McKenzie Friend in a legal action involving a party litigant, Mr Andrew McNamara against the Edinburgh Law firm Tods Murray LLP, who were previously linked to the former Scottish Conservative Party leader David McLetchie MSP.

Mr McLetchie as readers will remember was forced to resign from his position as Scottish Conservative leader on 31 October 2005 , after an expenses scandal over taxi fare claims for journeys which apparently involved trips to his former law firm. Mr McLetchie resigned from Tods Murray in early 2005 before the expenses scandal made the headlines.

A spokeswoman for the Scottish Courts Service today confirmed that a McKenzie Friend was allowed by Lord Woolman in the long running Court of Session action of [Pursuers] TODS MURRAY v [Defenders] (1) ARAKIN LIMITED; and (2) Mr Andrew McNamara on 1st December 2009. The McKenzie Friend however was required to sit behind the party litigant, Mr McNamara.

Reporting from the court, a legal insider who was present at last week's hearing confirmed the following :

“The Lord Ordinary, Lord Woolman, heard the "Motion" moved by A. McNamara, which was opposed by Senior Counsel (Ferguson), that A. McNamara be allowed McKenzie friend assistance. A. McNamara sought the assistance of a McKenzie Friend on medical grounds due to having been in hospital for four days, this confirmed by a doctor's letter.”

Lord Hamilton said to Holyrood he wants McKenzie Friends to sit behind court users in Scotland. “However, lawyers acting for Tods Murray challenged the litigant's request for a McKenzie Friend, waving a copy of the Lord President's letter to the Scottish Parliament, which was claimed to state the present law with regards to McKenzie Friends in Scotland that should dictate that a McKenzie Friend could only sit behind the litigant, take notes, assist with papers and quietly give advice.”

“Lord Woolman, after discussing the challenge by counsel acting for the pursuers, Tods Murray and referring to Lord Gill's "Civil Courts Review" with specific reference to the conflicted opinions of the Court (e.g. Lord Glennie in Kenniel v Kenniel), went on to allow the use of a second McKenzie Friend in Scottish Courts in recent weeks, albeit requiring the McKenzie Friend to sit behind the party litigant.”

A solicitor, commenting on the case this morning noted the party litigant was opposed by Senior and Junior Counsel acting for Tods Murray, who also had at least two additional solicitors with them in court.

He said "I think anyone who has to sit as a party litigant in open court, faced down by two sets of opposing counsel and supporting solicitors would by any reasonable person be viewed as suffering an imbalance in their representation. I would have to question why in the circumstances reported, the McKenzie Friend was not allowed to sit beside the litigant who requested and clearly required assistance."

Lord Hamilton‘s misinformed letter to Holyrood. The Lord President’s letter to Holyrood’s Petitions Committee, used by opposing counsel in the Tods Murray action to challenge a McKenzie Friend request, alleged that McKenzie Friend sat behind litigants, citing paragraphs from Lord Gill’s Civil Courts Review. However, Lord Hamilton failed to back up his claims with written evidence or case references in his letter, which stated : "As you will be aware, this expression, which owes its origin to English procedure, can be used in two senses : in its original sense it referred to an individual assisting a party litigant by sitting he hind him or her in court and assisting that litigant by making notes, helping with case papers or quietly giving advice on the conduct of the case, as well as providing moral support in court (Civil Courts Review, Chapter 11, para 42).

The only problem with Lord Hamilton’s reference to the Civil Courts Review, Chapter 11, para 42 is that no such reference to McKenzie Friends sitting behind litigants actually exists anywhere in the report.

You can read more about Lord Hamilton’s letter to the Petitions Committee over McKenzie Friends in my earlier report, here : Lord Hamilton accused of ‘being deluded’ over McKenzie Friends in Scotland as judge's attack on Holyrood petition contradicts courtroom reality

Lord Hamilton referred to Lord Gill's review, adding references which do not exist. A senior official from one of Scotland's consumer organisations said this morning : "I am troubled by the report from the court that counsel for the pursuers opposed the party litigant's request for a McKenzie Friend apparently going on to argue that if a McKenzie Friend were to be granted it must be under the terms of Lord Hamilton's letter to the Scottish Parliament which states that McKenzie Friends must sit behind the party litigant they are there to assist"."I feel I must point out to your readers that despite Lord Hamilton's claims in his letter to the Parliament that Lord Gill's Civil Justice Review referred to the practice of McKenzie Friends "sitting behind" party litigants, citing Chapter 11, Paragraph 42 of the Civil Courts Review, there is for the avoidance of any doubt, no mention anywhere in Lord Gill's report of a McKenzie Friend sitting behind a party litigant."

Lord Gill did not say that McKenzie Friends should sit behind litigants in Scottish Courts.“I am concerned with this latest decision, the Scottish Courts may be following a clear falsehood on the part of the Lord President, and are giving Scots back seat McKenzie Friends instead of a fully fledged McKenzie Friend of the kind who have worked successfully in England & Wales for nearly forty years. Clearly this ‘sitting behind’ arrangement, which disadvantages Scots consumers & court users cannot be sustained in the face of Lord Gill’s actual recommendations.”

A Scottish Government insider today said he was concerned that Lord Hamilton's ill judged references to McKenzie Friends "sitting behind" party litigants might have established a false pattern for the Scottish Courts to follow, giving further grounds to campaigners, including myself, who claim that Scots party litigants are denied a fair hearing when their McKenzie Friend is forced to sit behind the litigant, while opposing counsel have no such restrictions placed on their support staff and accompanying solicitors.

He said : "Clearly the Lord President has erred in his letter to the Petitions Committee, and as such this error has given rise to a number of questionable decisions in the Scottish Courts over where a McKenzie Friend should actually sit."

He went on : "Given this second case, where again a McKenzie Friend was required to sit behind a party litigant, there is a clear & present need for formal guidance to be issued to all courts on the consideration of McKenzie Friend requests, otherwise the feeling will remain that Scots are being denied the same access to justice that unrepresented court users in the rest of the UK are entitled to receive in terms of courtroom assistance."

McKenzie Friends in England & Wales, are treated as a Human Rights issue, as opposed to the current practice in Scotland, where a litigant’s request for a McKenzie Friend is handled at the discretion of individual courts. Lord Hamilton and the Scots legal establishment would rather that McKenzie Friends requests continue to be handled on a case by case, discretionary basis, but such a system clearly impedes the right of an individual’s access to justice as we have recently witnessed where the court wants McKenzie Friends sitting anywhere but next to the person they are there to assist.

Readers can compare the Scots system of discretionary, back seat McKenzie Friends, which currently lacks any publicly available guidance, versus the system in operation in England & Wales, where the full guidance from the Lord President of the Family Division on the use of McKenzie Friends in the English courts can be downloaded here : President's Guidance: McKenzie Friends

As far as I can tell from my own research, McKenzie Friends sitting behind party litigants just doesn't happen, anywhere, so the Lord President has some explaining to do on why he chose to inform the Parliament that McKenzie Friends sit behind is the case when it is most certainly not the case in jurisdictions where McKenzie Friends are allowed. Further, since the Lord President’s letter to Parliament has been used by counsel opposing court users McKenzie Friends requests, a clear statement must now be made by the Lord President on his reasons as to why in Scotland, we must make do with back seat McKenzie Friends, rather than the front seat variety enjoyed by the rest of the world ….

The Lord President’s office has so far refused to reply to enquiries on the content of his letter to Holyrood’s Petitions Committee amid mounting claims he misinformed Parliament over the application & use of McKenzie Friends in Scotland’s courts ….

Scottish Courts criticised over 'vexatious' rulings as cases show public denied access to justice in challenges against law firms

Scotland's courts have been criticised for protecting legal firms against challenges by barring clients from courts. A recent addition to the list of vexatious litigants in Scotland, now numbering six people, has drawn attention to the fact that most of the cases on the list appear at some stage, to involve issues relating to the legal profession, with even allegations of interference in the judicial process itself, leading to criticisms today that the Scottish courts are protecting lawyers from challenges by clients who cannot obtain legal representation due to the fact that most lawyers will not take on legal actions against their colleagues.

As the Scotsman reported yesterday, the latest addition to the list of vexatious litigants follows a judgement from Lord Reed in the case of the Lord Advocate v Andrew McNamara, relating to cases raised by the pursuer dating back to 1996.

Among those mentioned, as the Scotsman reports, in the cases brought by Mr McNamara, were Edinburgh legal firm Tods Murray who were suing McNamara for fees, and Glasgow legal firm Levy & McRae, who formerly themselves represented McNamara in his own actions against Tods Murray. The Scotsman goes on to report that the cases grew to involve the former First Minister Henry McLeish - himself forced to resign over secretly renting out his offices to law firm Digby Brown, another Glasgow legal firm - Alexander Stone & Co, and Sheriff Peebles.

The glaring consistency in all those named in the various legal actions, is of course, they are all members of, or have some connection with the legal profession.

Law Society of Scotland ‘strangely silent’ on public being barred from courts when cases involve challenges to lawyers. A legal insider today alleged that ‘vexatious rulings’, quietly taking place without protest, are damaging public access to justice in Scotland, and appear to be being used by the legal establishment as a last line of defence against people who find themselves unrepresented by counsel solely because their cases, which are often complicated, involve challenges to the legal profession’s way of doing things.

He said "What is glaringly obvious in the list of vexatious litigants on the Scottish Courts website is that most of the cases, the details of which are peculiarly not listed in full to give readers any leads on why such rulings have been applied, seem to have some involvement with the legal profession in some way, such as challenges to fees, poor work, misrepresentation, interference in the judicial process itself, and even involvement with the Law Society of Scotland."

He went on : "One could easily conclude the courts are closing the door on access to justice for anyone who is challenging a legal firm, and who also find themselves coincidentally lacking legal representation because of an organised boycott against their case by solicitors and the Law Society of Scotland."

Cabinet Chief John Swinney revealed Law Society chiefs ordered solicitors to drop clients. The lack of legal representation of individuals who find themselves the target of 'vexatious litigant' rulings appears to be no accident, as Cabinet Secretary John Swinney revealed during a debate in the Scottish Parliament that Law Society chiefs have written to solicitors advising them "to drop clients", in cases which usually involve solicitors initially representing clients against other legal firms in complicated legal actions, where complaints of negligence, poor service, or falsified fee demands, and corruption against clients have been detected.

The usual pattern of obstruction then develops in that clients find themselves suddenly unrepresented nearing their proof hearings in Court after orders to cease representation are handed out by the Law Society, or as reported in some cases, secret deals are worked out between the legal firms to drop the pursuer a few days before the court case is due to start.

Cabinet Secretary John Swinney reveals Law Society Chief Kenneth Pritchard ordered legal firms to drop clients, leaving them unrepresented in court, like McNamara.

Justice Secretary Kenny MacAskill 'should make guidelines’ to Judges on barring people from access to court. An official from a consumer organisation today said that while Scotland has so far escaped using the ruling to bar so many people from the courts, she believed it was time for the Justice Secretary to step in and ensure that members of the public are not being barred from access to the courts simply because their cases involve challenges against 'crooked lawyers' or involved claims against other professionals.

He said : "Given the recent ideas of a sentencing council put forward by the Scottish Government in the Criminal Justice and Licensing Bill, I believe it is now appropriate for the Justice Secretary to make strict guidelines to the courts on cases which may be considered vexatious litigation and that it may be time for a review of the Vexatious Actions Act and how it is applied in cases where it appears people are being denied access to justice especially when their case seems to involve problems with the legal profession.”

“It does appear to me that many of the cases so far which have been denied a hearing in the Scottish courts seem to involve problems with the legal profession, and a determination on the part of some that no issue of an unrepresented pursuer's case receives a fair hearing, for fear of upsetting the balance of power in the Scots legal world which most people now accept is heavily tilted against the consumer by vested interests."

As the evidence clearly shows, the court has become no place for challenging a crooked legal firm – because everyone in the court, except the client, is a member of the Law Society of Scotland .. even the judge.

A new independent venue must be developed for such cases, as the court has clearly demonstrated time & again it cannot be trusted and cannot be impartial enough in such instances where a client has been maligned by one of their colleagues, to deliver a just verdict while determining exactly the course of events which led to the litigation in the first place.