Victorian Justice : Court of Session set to rule on SIXTEEN YEAR medical injury claim against Motherwell College & North Lanarkshire Council

Court of Session ruling expected on 16 year civil damages claim after 8 weeks of hearings over 2 years. THE COURT OF SESSION is soon expected to issue a ruling in a SIXTEEN YEAR battle for justice in a medical injury case against Motherwell College & North Lanarkshire Council. The case, which is the longest of its kind on record, regarding a workplace injury which occurred in 1995, has taken a staggering sixteen years out of the life of Mr Martin Wilson, a Music Lecturer who suffered severe back injuries after help was denied to him in the course of his duties by its now former Principal Richard Millham, who was dubbed a “Bully Boss” by national newspapers after Motherwell College lost a string of unfair dismissal claims brought by College staff.

Members of staff at Motherwell College were reported to have described ‘a strong climate of fear which is still there’. One of several unanimous decisions by Employment Tribunals against the College confirmed that Mr Wilson was unfairly dismissed while on long term sickness leave.

Lord Woolman is the presiding judge in the present claim of  M.Wilson v North Lanarkshire Council & Others (A1628/01). Investigations conducted by the media have revealed the case has generated thousands of pages of transcripts along with numerous hearings before the Court of Session where internationally acclaimed expert medical witnesses from the UK and abroad disputed the testimony of Motherwell College’s own ‘experts’. As the hearings ‘progressed’, many legal observers to the case indicated matters could & should have been resolved years ago, some expressing opinions the case appeared to have been prolonged by legal teams solely for the purpose of generating legal fees from Motherwell College totalling HUNDREDS OF THOUSANDS OF POUNDS, ultimately paid for by taxpayers.

An in-depth investigation into the case carried out by Scottish Law Reporter, compiled with the help of observers to the legal proceedings and senior legal insiders, berated Motherwell College and its legal representatives for wilfully delaying for THIRTEEN YEARS after Mr Wilson’s injury before commissioning an expert ergonomics report in this manual handling claim, and then only after Mr Wilson had managed to gain access to the defenders premises, something no fewer than FOUR 'normally reliable' law firms which included the well known Edinburgh law firm of Balfour & Manson & the Glasgow based Harper Macleod who had previously 'represented Mr Wilson’s best interests' had failed to do during the thirteen years since the summons was served on Motherwell College.

Damning evidence from interviews with legal observers to the proceedings revealed instances where despite the court suggesting the defenders make the “expert ergonomics report” available to Mr Wilson as soon as possible, the legal agents acting for Motherwell College, Simpson and Marwick, withheld the report until approximately 72 hours before the Proof was scheduled to begin in June of 2008, and then only handing it over on Court premises during a procedural hearing before Lord Penrose.

After being told of the report being withheld from the pursuer, Lord Penrose claimed that the defenders had been “playing fast and loose with due process in an attempt to gain an unfair advantage” and “had rendered the scheduled proof hearing unsafe”. Lord Penrose then invited Motherwell College representatives to apply for a postponement, which they did, and despite the party litigant being prepared to continue regardless - he had paid for distinguished expert witnesses to travel from destinations as far afield as the Western United States.

Taking the defenders legal representatives conduct into account, Lord Penrose described the situation as 'unfortunate' yet amazingly, no penalty was imposed on the defenders and these tactics, widely viewed as cynical delaying tactics, led to a further delay of over a year, the hearings finally getting started in November 2009 at the Court of Session under Lord Woolman. Later that month, and only after the Proof hearings had begun, a ruling in the Wilson v North Lanarkshire Council & others case heralded in the appearance of Scotland’s first Civil Law McKenzie Friend in a Court of Session case.

According to legal observers, hearings in the case continued “sporadically” and one year later in November 2010 Motherwell College’s legal team told the court they were withdrawing their “expert ergonomics report” and would not be relying on it,.leading many observers to view the defender’s case as being “unsustainable”.

The report by Scottish Law Reporter also revealed that out of a total of some SIXTEEN LAY WITNESSES to be called by Motherwell College, only FOUR eventually appeared, and none of those included the key player in Mr Wilson’s earlier successful Employment Tribunal Decision against the College, it’s disgraced former Principal, Richard Millham.

Astonishingly the defenders suddenly decided at the last minute in January 2011 not to call the College's former Health and Safety Officer in a manual handling claim, - a consequence perhaps of the defenders failure to produce a single risk assessment or manual handling record. Observers to hearings of the case described the testimony of Motherwell College’s expert witnesses as “lacking any credibility whatsoever”, “highly scripted”, and “unusually combative”.

North Lanarkshire Council & Motherwell College were represented throughout hearings at the Court of Session by Edinburgh law firm Simpson & Marwick. Senior Counsel for Simpson & Marwick was Ian MacKay QC, Junior Counsel was Calum Wilson both of Compass Chambers.

Political connections ? Former Motherwell College Principal Richard Millham, pictured (left) with the then First Minister Jack McConnell (right) in Motherwell FC awards ceremony. While the Court of Session is expected to issue its ruling soon, there remain significant questions over who or what delayed a civil damages claim for approximately 16 years against scandal hit Motherwell College. Senior legal insiders have indicated the case may well form part of an effort to have the Scottish Parliament look at the regular and unjustifiable delays in access to justice in the Scottish courts while some have raised questions over the possibility influence of a political nature may have been exerted on law firms to delay Mr Wilson’s access to justice.

BACKGROUND TO MOTHERWELL COLLEGE CLIMATE OF FEAR & 16 YEAR JUSTICE BATTLE :

Motherwell College squandered £300K of taxpayers money fighting a string of Tribunal hearings involving bullying allegations against lecturers which the College lost. A number of media reports, referred to in earlier coverage by Scottish Law Reporter, show Motherwell College were involved in a string of Employment Tribunal decisions the college lost during Richard Millham’s term as Principal of Motherwell College. Allegations in newspapers including the Sunday Mail reported that “In 1999, lecturer Martin Wilson won £4000 after a tribunal ruled he had been unfairly fired. He had a back injury and could not work. A close friend said : "He was targeted by Millham. There was a strong climate of fear, which is still there ."

Scottish Law Reporter reported in earlier coverage : “From 1995-1998 Motherwell College opposed Mr Wilson's claim for Unfair Dismissal while on long term sickness leave and lost, to a unanimous decision. Undeterred Motherwell College appealed the decision, and lost again. This was the first of several high profile Employment Tribunal cases lost by the Board of Management of Motherwell College, often to unanimous decisions against it.”

I have reported on this case in previous articles, here : FIFTEEN year wait for justice against Motherwell College marks poor state of Scotland’s ‘Victorian’ Justice System on European Civil Justice Day and here : Access to Justice ? Law Society's insurers Marsh UK linked to SIXTEEN YEAR Court of Session civil damages claim against Motherwell College

Access to Justice ? Law Society's insurers Marsh UK linked to SIXTEEN YEAR Court of Session civil damages claim against Motherwell College

Marsh UK, the UK subsidiary of the US insurance firm Marsh & McLennan companies which saw some of its directors plead guilty as a result of an investigation by the New York District Attorney's Office of bid-rigging and price-fixing in the insurance industry has now been linked to Scotland's longest running civil damages action claim, now in its SIXTEENTH YEAR in the Court of Session, involving Motherwell College & North Lanarkshire Council after the local authority released details in response to a Freedom of Information request.

Court of Session judge Lord Woolman hears Scotland’s longest running civil damages claim. Now in its Sixteenth year in the Court of Session, fresh hearings in the long running civil damages claim in front of judge Lord Woolman began earlier on Tuesday of this week. M.Wilson v North Lanarkshire Council & Others (A1628/01) which has its origins in the mid 1990’s and brought about Scotland’s first civil law McKenzie Friend in late 2009, involves a sole party litigant, Mr Martin Wilson, a former Music lecturer of Motherwell College who, according to media reports was forced out of his job after sustaining severe back injuries during the course of his duties as a music lecturer during his time at the College in the 1990’s.

Responses obtained by Diary of Injustice in reply to Freedom of Information enquiries reveal that Marsh, the insurance firm who insure all members of Scotland’s legal profession without exception, now also insure North Lanarkshire Council, who operate Motherwell College.

An official from North Lanarkshire Council replying to an FOI request admitted : “I can advise that North Lanarkshire Council’s Insurance Brokers until 30 September 2007 were AON, and from 1 October 2007 this service has been provided by Marsh. I can advise also that Travellers Insurance Company Limited have provided employers liability cover for the whole period of your request.”

In what is now Scotland’s longest running civil damages claim, Mr Wilson, the party litigant, has been forced to represent himself after several of Scotland’s leading law firms suspiciously abandoned his case at the very last minute. Mr Wilson is facing North Lanarkshire Council and their indemnity insurers, Travelers Insurance Co Ltd who are both being represented in court by Edinburgh law firm Simpson & Marwick. Senior Counsel for Simpson & Marwick is Ian MacKay QC, Junior Counsel being Calum Wilson both of Compass Chambers.

Now, following further investigations by Diary of Injustice and despite the outrageous time it has taken for Scotland’s civil justice system to hear their testimony, hearings in the Court of Session have shown that many internationally acclaimed experts have supported the party litigant’s claims.

I first reported on Mr Wilson’s case late last year, here : FIFTEEN year wait for justice against Motherwell College marks poor state of Scotland’s ‘Victorian’ Justice System on European Civil Justice Day where legal insiders who attended previous court hearings reported that Mr Wilson, who had been put in the position of having to represent himself after several big name law firms, who were at the time & are currently all insured with Marsh UK, withdrew from Mr Wilson’s case at the last minute prior to scheduled hearings of the Proof. Mr Wilson had also encountered repeated & numerous refusals of ‘expert witnesses’ from Scotland to assist his case as long as he was unrepresented. As a party litigant without representation, Mr Wilson was, according to court observers, forced abroad to Japan and the United States for supportive expert medical reports.

According to court documents seen by Diary of Injustice last October, Mr Wilson was previously represented by the well known Edinburgh law firm of Balfour & Manson, who were appointed by Scotland’s largest teachers & lecturers Union, the Educational Institute for Scotland (EIS), who spent tens of thousands of pounds assessing Mr Wilson’s injury as a valid claim, and that it should proceed to court. Amazingly it took the EIS almost THREE YEARS to lodge the summons against Motherwell College.

Papers studied by legal insiders reporting on the case revealed that Balfour & Manson, after being appointed by the EIS spent a staggering EIGHT YEARS working on Mr Wilson’s injury claim, and then at the last minute, decided to withdraw from acting for their client with only weeks to go before scheduled Proof Hearings in the Court of Session.

Balfour & Manson’s withdrawal from acting for Mr Wilson then became a suspicious pattern followed by further four law firms, including the Glasgow based Harper Macleod also withdrawing at the last minute, some eighteen months after representing Mr Wilson. Harper McLeod claimed they had ‘suddenly discovered’ “a commercial difficulty” in that they had an annual retainer from Motherwell College for several years, and had represented the College in Mr Wilson’s Employment Tribunal hearing over his unfair dismissal, which Mr Wilson won on a unanimous decision. Motherwell College also appealed the Employment Tribunal decision on Mr Wilson’s case and lost again.

A further two legal firms took on Mr Wilson’s case and then were apparently persuaded to drop their client, amazingly even returning fees paid to them for their service.

Motherwell College squandered £300K of taxpayers money fighting a string of Tribunal hearings involving bullying allegations against lecturers which the College lost. A number of media reports, referred to in recent coverage of the case by Scottish Law Reporter, show Motherwell College were involved in a string of Employment Tribunal decisions the college lost during Richard Millham’s term as Principal of Motherwell College. Allegations in newspapers including the Sunday Mail reported that “In 1999, lecturer Martin Wilson won £4000 after a tribunal ruled he had been unfairly fired. He had a back injury and could not work. A close friend said : "He was targeted by Millham. There was a strong climate of fear, which is still there ."

According to Scottish Law Reporter who last year reported on the case, “From 1995-1998 Motherwell College opposed Mr Wilson's claim for Unfair Dismissal while on long term sickness leave and lost, to a unanimous decision. Undeterred Motherwell College appealed the decision, and lost again. This was the first of several high profile Employment Tribunal cases lost by the Board of Management of Motherwell College, often to unanimous decisions against it.”

Simpson & Marwick, who are representing Motherwell College & North Lanarkshire Council, are themselves famed for their representation of solicitors accused of professional negligence & client swindling, all supposedly covered by the Law Society of Scotland’s Master Policy Professional Indemnity Insurance Scheme, operated by Marsh to defend against negligence claims raised by clients. The Master Policy and its administration, operation was linked in 2009 to client suicides in an independent report published by the University of Manchester’s Law School.

One of Simpson & Marwick’s partners, Dr Pamela Abernethy famously appeared at the Scottish Parliament’s Justice Committee during 2008, telling msps that pleural plaques, an asbestos related condition, could actually be good for people. I reported on Dr Abernethy’s incredulous claims in September 2008, here : Insurance lawyers argue against laws to help asbestos victims asserting part of their suffering 'is a good thing'

Marsh UK, the British end of the gigantic US insurance operation appear to be linked to many insurance deals in the public & private sector, ranging from multiple services provided by local & national government including law & order, to the private sector. Marsh also enjoy a monopoly on the insurance of all solicitors in Scotland through the Law Society of Scotland’s ‘brutal enforcement’ of the Master Insurance Policy arrangements where all solicitors are required to pay into the professional indemnity insurance scheme if they want to practice any form of law.

Marsh appear to have heavy political influence in the UK, with Conservative Lord Ian Lang now the Chairman elect of Marsh & McLennan companies, according to his register of interests published as per his duties as Chairman of the Advisory Committee on Business Appointments. Lord Lang joined the Marsh & McLennan board in 1997 and has assiduously refused all invitations to comment since news of the 'Marsh Frauds' broke, frauds which were accompanied by valid injury and disability claims being routinely denied. More on Lord Lang’s position at Marsh & McLennan and his career history, along with documents detailing serious allegations against many directors of Marsh including Lord Lang, can be viewed at Scottish Law Reporter, HERE

This reporter and the Scottish Law Reporters team will continue to follow this case closely.

FIFTEEN year wait for justice against Motherwell College marks poor state of Scotland’s ‘Victorian’ Justice System on European Civil Justice Day

Scotland’s Court of Session to hear lecturer’s 15 year wait for justice against Motherwell College. IN a fitting tribute to mark the poor state of Scotland’s civil justice system on the European Civil Justice Day held every 25th October, a record breaking personal injury civil damages claim against Motherwell College & North Lanarkshire Council in the Court of Session which has its origins in the mid 1990’s and last year brought about Scotland’s first civil law McKenzie Friend is now set to be followed by an unprecedented thirteenth year of litigation with further hearings scheduled for 2011 in what some claim is a considerable abuse of the court process & the individual’s right of a fair hearing within a reasonable time as enshrined in Article 6 of European Human Rights laws.

The case in question, M.Wilson v North Lanarkshire Council & Others (A1628/01) involves a sole party litigant, a former Music lecturer of Motherwell College, pitched against the might of North Lanarkshire Council and their indemnity insurers, Travelers Insurance Co Ltd who are both being represented in court by Edinburgh law firm Simpson & Marwick, themselves famed for their representation of solicitors shielded by the Law Society of Scotland’s Master Policy Professional Indemnity Insurance Scheme, operated by Marsh to defend against negligence claims raised by clients.

Legal insiders who have attended the court hearings report that Mr Wilson, who has been put in the forced position of having to represent himself after several big name law firms withdrew from his case at the last minute prior to scheduled hearings of the Proof, has also encountered repeated & numerous refusals of ‘expert witnesses’ from Scotland who refuse to assist his case as long as Mr Wilson is unrepresented. Instead, Mr Wilson has been forced abroad to Japan and the United States for supportive expert medical reports, leading to charges many in Scotland’s ‘expert witness’ groups “may have been nobbled or scared off” and will not provide their services to unrepresented party litigants such as Mr Wilson.

According to court documents seen by Diary of Injustice, Mr Wilson was previously represented by the well known Edinburgh law firm of Balfour & Manson, who were appointed by Scotland’s largest teachers & lecturers Union, the Educational Institute for Scotland (EIS), who spent tens of thousands of pounds assessing Mr Wilson’s injury as a valid claim, and that it should proceed to court. Amazingly it took the EIS almost three years to lodge the summons against Motherwell College.

Papers studied by legal insiders reporting on the case reveal that Balfour & Manson, after being appointed by the EIS spent a staggering eight years working on Mr Wilson’s injury claim, and then at the last minute, decided to withdraw from acting for their client with only weeks to go before scheduled Proof Hearings in the Court of Session.

Balfour & Manson’s withdrawal from acting for Mr Wilson then became a suspicious pattern followed by further four law firms, including the Glasgow based Harper Macleod also withdrawing at the last minute, some eighteen months after representing Mr Wilson. Harper McLeod claimed they had ‘suddenly discovered’ “a commercial difficulty” in that they had an annual retainer from Motherwell College for several years, and had represented the College in Mr Wilson’s Employment Tribunal hearing over his unfair dismissal, which Mr Wilson won on a unanimous decision. Motherwell College also appealed the Employment Tribunal decision on Mr Wilson’s case and lost again.

A further two legal firms took on Mr Wilson’s case and then were apparently persuaded to drop their client, amazingly even returning fees paid to them for their service.

Motherwell College squandered £300K of taxpayers money fighting a string of Tribunal hearings involving bullying allegations against lecturers which the College lost. A number of media reports, referred to in recent coverage of the case by Scottish Law Reporter, show Motherwell College were involved in a string of Employment Tribunal decisions the college lost during Richard Millham’s term as Principal of Motherwell College. Allegations in newspapers including the Sunday Mail reported that “In 1999, lecturer Martin Wilson won 4000 after a tribunal ruled he had been unfairly fired. He had a back injury and could not work. A close friend said : "He was targeted by Millham. There was a strong climate of fear, which is still there ."

During all this time and many forced appearances at the Court of Session as a party litigant, court staff have indicated in comments they believe Mr Wilson’s health has diminished considerably, one insider claiming to Diary of Injustice the former lecturer looked like he had aged 30 years in the last year alone.

Court of Session judge Lord Woolman to hear case in a few weeks time. Hearings on Mr Wilson’s personal injury claim are scheduled to start again in a matter of weeks at the Court of Session under Lord Woolman. Legal insiders say many are now taking a strong interest in the Wilson/NLC case and its final outcome, especially in the wake of the Lord Justice Clerk Lord Gill’s recommendations in his Civil Courts Review to reform what he described as Scotland’s “Victorian justice system”, which appears to be so Victorian, cases can float around in the justice system literally for decades with party litigants such as Mr Wilson failing to get anything near approaching “a fair hearing within a reasonable time”.

It is worth noting the solicitors acting for North Lanarkshire Council & Motherwell College, the Edinburgh law firm of Simpson & Marwick in their representation of insurers in connection with claims for asbestos related health diseases attained public notoriety last year in their appearance before the Scottish Parliament’s Justice Committee in September 2008, where one of their senior partners, Dr Pamela Abernethy of the Forum of Insurance Lawyers famously argued with MSPs that symptoms of Asbestos contamination were ‘good for people’.

It is also worth noting last year, the Master Policy, of which Simpson & Marwick often act as lead solicitors, often representing fellow solicitors facing negligence claims from clients, was investigated by the Scottish Legal Complaints Commission, with an independent report carried out by the University of Manchester’s Law School linking the secretive ‘Master Policy’ insurance scheme to the deaths of clients who had attempted to claim damages from ‘crooked lawyers’.

The SLCC’s report on the Master Policy and my earlier coverage on the revelations can be found here : Suicides, illness, broken families and ruined clients reveal true cost of Law Society's Master Policy which 'allows solicitors to sleep at night'

The report from Scottish Law Reporter on Mr Wilson’s 15 year quest for access to justice in the Scottish Courts follows :

Record 15 year wait for justice approaches for lecturer in Court of Session showdown with former Motherwell college ‘Bully Boss’ principal

A staggering 15 year wait for Justice by a music lecturer against Motherwell College may see its disgraced former Principal appear in court. FIFTEEN YEARS later in what is Scotland’s longest running civil damages action involving Motherwell College, the disgraced former Principal & CEO of Motherwell College Richard Millham, dubbed the “Bully Boss” by the media due to a string of allegations of bullying involving college lecturers, may be back in the dock soon, this time in Scotland’s Court of Session in a civil damages action claim against Motherwell College, brought by Mr Martin Wilson, a former Music Lecturer at the College.

“Bully Boss” Richard Millham who was alleged in media reports ‘to have targeted Mr Wilson in a strong climate of fear’, was forced to resign after widespread press coverage of the many Employment Tribunal decisions lost by the College under his stewardship - some estimates put the cost of these at a staggering £300,000 pounds of taxpayers money.

One of several staff members who fought back against the bullying culture at Motherwell College was the Music Lecturer Martin Wilson, who has braved the Court of Session as a party litigant in a 15 year attempt to gain justice in his civil damages claim against Motherwell College, who are represented by Simpson & Marwick, who famously argued against the Damages (Asbestos) Bill at the Scottish Parliament, claiming to MSPs asbestos related illnesses were actually good for victims who suffered from ‘pleural plaques’, a condition that forms as a result of exposure to asbestos

From 1995-1998 Motherwell College opposed Mr Wilson's claim for Unfair Dismissal while on long term sickness leave and lost, to a unanimous decision. Undeterred Motherwell College appealed the decision, and lost again. This was the first of several high profile Employment Tribunal cases lost by the Board of Management of Motherwell College, often to unanimous decisions against it.

Undeterred, the Board of Management of Motherwell College has continued to spend thousands of pounds more of taxpayers money for the last 13 years opposing Mr Wilson's Personal Injury claim, the longest running civil case of its kind, the new Principal Mr Hugh Logan losing appeals before the FOI Commissioner and the Pensions Ombudsman along the way.

Mr Wilson has still not received his correct ill-health pension entitlement some 15 years after he was injured, all of which adds further substance to Lord Gill's recent criticisms of the Scottish Civil Justice system as 'failing society' and often involving 'scandalous delays'.

In an age of fairness and public sector cuts it is difficult to imagine how Motherwell College's obstinacy can be justified. However it might have something to do with the important precedent the case will establish if successful and the attitude of the College's disgraced insurer Travelers Insurance Co Ltd, who have also been fined hundreds of millions of dollars in connection with workers claims for asbestos injuries, one of many subpoenas alleging it had acted "maliciously" using "fraud, deceit and outright lies," designing and orchestrating their claims settlement practices to "intentionally delay," and raising defences that they knew would never succeed in order to settle claims for less money.

First use of McKenzie Friend in Scotland as Court of Session sweeps aside 40 years of lawyers monopoly over public access to justice

Lord Woolman granted Scotland’s first Civil Law McKenzie Friend request FORTY YEARS after McKenzie Friends were first introduced to UK courts as a result of the 1970 McKenzie v McKenzie decision which set a legal precedent for court users in England & Wales to request and receive the invaluable assistance of a McKenzie Friend, Scotland’s Court of Session has finally, albeit grudgingly fallen into line with the rest of the country and many international jurisdictions by granting what many say is the first successful request for a McKenzie Friend to appear in Scotland's civil courts.

The unexpected turn of events in the Court of Session last Tuesday, 17th November 2009 saw the sitting judge, Lord Woolman allow the attendance of Scotland’s first ever McKenzie Friend in a long running civil damages action which named Motherwell College, North Lanarkshire Council & Edinburgh Law firm Simpson & Marwick as defenders. The case, a medical injury claim recently heard 'potentially explosive allegations' against the College from the witness box.

A spokeswoman for the Scottish Courts Service confirmed the first use of a McKenzie Friend in Scotland, issuing the following brief statement : "I confirm [the party litigant] was allowed to be assisted in the manner associated with the term “McKenzie Friend”. [The litigant's] supporter was advised by the Court as to the nature of his role and is seated behind [the litigant] in court in the place where an instructing agent (solicitor) would sit.”

The Scottish Courts Service was further asked to confirm this was the first successful use of a McKenzie Friend in a civil damages action in Scotland. However, the SCS said they did not keep such statistics or data, and therefore could not confirm one way or another.

A senior official of one of Scotland’s consumer organisations welcomed Lord Woolman’s decision to allow the use of a McKenzie Friend. He said : “The rights of party litigants in Scotland’s civil courts have been greatly enhanced by Lord Woolman’s decision allowing what we understand to be the first ever use of a McKenzie Friend in a Scottish court. We hope this will be the first of many successful applications to the Scottish courts for the use of McKenzie Friends in cases were consumers have found it difficult or too costly to obtain the services of a solicitor to represent their legal interests.”

However, Lord Woolman’s decision in requiring the McKenzie Friend to ‘sit behind’ the party litigant came in for criticism, due to the fact that in England & Wales, and most international jurisdictions were McKenzie Friends are allowed, the party litigant requesting the advice & assistance of a McKenzie Friend usually find their McKenzie Friend sits beside them, rather than behind them.

A senior barrister from England said today : “I have often attended hearings where McKenzie Friends have assisted party litigants, seated next to them. I have not attended a hearing where an English court has insisted or required that a McKenzie Friend must sit behind their party litigant. Such a seating arrangement would be counterproductive to the litigant who would be put in a position of having to constantly turn around, seeking advice on what to say or asking to see notes taken by the McKenzie Friend. I would think the judge’s patience would fray a little at such a constant head turning prospect, and therefore on that basis I would have to say your Scottish judge got it wrong on who sits where.”

A former party litigant whose experiences were recently reported in a Consumer report on Scotland’s Civil Courts today said : “I found the entire system stacked against me in court and it will come as no surprise I lost. If I had been able to use a McKenzie Friend I might have won my case, or at least come to a settlement but the judge in my case said I could not have a McKenzie Friend. The lawyers laughed at me when I was forced to drop my case and to this day I feel very bitter about it.”

He continued : “Where a Scotsman living in England or Wales, can enter an English court with a right to have a McKenzie Friend by his side to help him in his hour of need, yet a Scotsman living in Scotland asking for the help of a McKenzie Friend will still have to face the discretion of individual courts who may seat his McKenzie Friend miles away to the rear .. is not fair. This lack of fairness has to be put right.”

Lord Gill recommended McKenzie Friends be introduced in his Civil Courts Review. In the recent Civil Courts Review, conducted by Scotland’s Lord Justice Clerk, Lord Brian Gill recommended that McKenzie Friends should be introduced in Scotland, not only being allowed to sit beside a litigant but also to be granted a right of audience in some circumstances, to speak for litigants. However, Lord Gill’s detailed recommendations on the introduction & application of McKenzie Friends in Scotland’s courts conflicts severely with claims made by the Lord President to Holyrood’s Petitions Committee, where Lord Hamilton claimed that such assistance as provided by McKenzie Friends had always existed in Scotland, when in fact, no recorded use of McKenzie Friends in Scottish Civil Courts has taken place until now, this now confirmed by the Scottish Courts Service itself.

You can read my earlier articles on Lord Gill’s recommendations for the introduction of McKenzie Friends in Scotland, here : Scots Law 'shake up' as Lord Gill’s Civil Courts Review supports McKenzie Friends, Class Actions & wider access to justice for all

You can read my earlier reports on the battle to bring McKenzie Friends to Scotland here : McKenzie Friends for Scotland - A battle worthy of a McKenzie Friend

As legal experts in Scotland continue to assess the impact of Lord Woolman's ruling on McKenzie Friends, and the precedent the decision has now established, the race is now on to set rules and guidance for the Scottish Courts on the general application & acceptance of McKenzie Friends to provide unrepresented party litigants with advice & assistance during court appearances.

A legal insider pointed out today that in England & Wales, as soon as a litigant makes a request to have a McKenzie Friend assist their litigation, the English courts must consider that request on a Human Rights basis, as contained in the Lord President of the Family Division’s guidance to the English Courts, which clearly states :

• When considering any request for the assistance of a McKenzie Friend, the Human Rights Act 1998 Sch 1 Part 1 Article 6 is engaged; the court should consider the matter judicially, allowing the litigant reasonable opportunity to develop the argument in favour of the request.

• The litigant in person should not be required to justify his desire to have a McKenzie Friend ; in the event of objection, it is for the objecting party to rebut the presumption in favour of allowing the MF to attend.

• A favourable decision by the court, allowing the assistance of a McKenzie Friend, should be regarded as final and not as something which another party can ask the court to revisit later, save on the ground of misconduct by the McKenzie Friend or on the ground that the MF’s continuing presence will impede the efficient administration of justice.

What a McKenzie Friend May Do :

• Provide moral support for the litigant
• Take notes
• Help with case papers
• Quietly give advice on : points of law or procedure ; issues that the litigant may wish to raise in court & questions the litigant may wish to ask witnesses.

What a McKenzie Friend May Not Do :

• A McKenzie Friend has no right to act on behalf of a litigant in person. It is the right of the litigant who wishes to do so to have the assistance of a McKenzie Friend.

• A McKenzie Friend is not entitled to address the court, nor examine any witnesses. A McKenzie Friend who does so becomes an advocate and requires the grant of a right of audience.

• A McKenzie Friend may not act as the agent of the litigant in relation to the proceedings nor manage the litigant’s case outside court, for example, by signing court documents.

The full guidance from the Lord President of the Family Division on the use of McKenzie Friends in England & Wales can be downloaded here : President's Guidance: McKenzie Friends

One of the most important issues with regard to the use of McKenzie Friends in England & Wales, is that when a litigant makes a request for a McKenzie Friend, the request is considered with regard to Article 6 of Human Rights legislation. Currently, this is not the case in Scotland, and as yet, no guidance has been released from the Lord President’s office addressing these issues.

This Human Right of a McKenzie Friend to the unrepresented people across our country must not be separated by the hills of the Scottish Borders, simply on the basis the Scottish legal establishment, and the legal profession feel they will lose control over the courts and perhaps more importantly to them, control over access to justice and law firms profits.

Given the confused and contradictory claims by the Lord President, Lord Hamilton and the Scottish Government in its responses to the McKenzie Friend petition, and Lord Woolman’s following to the letter of Lord Hamilton’s ‘sit behind & far away’ policy, a right and entitlement to a McKenzie Friend in Scottish Law is long overdue and can no longer be allowed to remain 'in the the gift' of the Court. Give Scots the right of a McKenzie Friend.