McKenzie Friends for Scotland still a way to go as Holyrood seeks clarity from Lord President on guidance, use & entitlements for court users

Lord President Lord Hamilton. LORD HAMILTON, Scotland’s chief judge is to be asked by Parliament to ensure guidance and information is available to members of the public seeking to use a McKenzie Friend in Scottish Courts, after it emerged today that two months on from Lord Woolman's Court of Session ruling during November 2009 in Martin Wilson v North Lanarkshire Council & others, granting the first use of a McKenzie Friend in Scotland, members of the public are still being given contradictory from the Courts Service on whether they can or cannot use a McKenzie Friend in a Scottish court.

Currently, there are only two recorded uses of McKenzie Friends in Scotland’s civil courts, with both being forced to ‘sit behind’ the party litigant who requested their help & assistance, and no guidance yet exists on the Scottish Courts Service website or within Scottish court buildings, where litigants can find out how to request and use the services of a McKenzie Friend. Indeed, several reports have come in from individuals claiming many of Scotland's regional courts know nothing of the McKenzie Friend issue, in some instances court officials claiming McKenzie Friends are not allowed, while others say its possible but not yet written into law.

The Scottish Parliament’s Petitions Committee, during its latest hearing on Petition 1247, McKenzie Friends for Scotland, debated the information provided by the Scottish Government, who claimed that information that a “mechanism of a supportive friend is already available in the Scottish Courts, in most cases, most of the time”, claims which were disputed by the Law Society, the Scottish Courts Service & Consumer Focus Scotland who all referred to the fact a “supportive friend” (a McKenzie Friend) had yet to be introduced to Scotland’s courts.

A Scottish Government insider claimed his colleagues in the Justice Department were reluctant to use the term “McKenzie Friend” as they had been caught short on the issue, after enquiries to the Scottish Courts Service revealed no such “supportive friends” (McKenzie Friends) had ever been used in civil cases in Scotland prior to Lord Woolman’s November ‘09 ruling, this coming after McKenzie Friends have been successfully used in England & Wales, and many other international jurisdictions for forty years.

He said : “There is no doubt about it. This 40 year gap where McKenzie Friends have effectively been kept out of Scotland by successive administrations and the legal profession, looks bad for all concerned. The Justice Secretary and Lord President who started this ‘supportive friend’ business both look a bit foolish for claiming something exists when clearly it does not and never has.”

McKenzie Friends for Scotland debated at Holyrood once more :

Margo MacDonald spoke further on McKenzie Friends. At last week’s Holyrood hearings on the McKenzie Friend petition, independent msp Margo MacDonald spoke further on the issue, saying : “The petition and the back-up material are self-evident. An opinion poll has been conducted and, although we should take the results with a pinch of salt, there is a consistent level of support—66 per cent—for the idea of McKenzie friends. We have had word from the bench—from on high—that it has always been open to litigants who defend themselves in Scottish courts, but there does not seem to be one view from the bench on the matter."

Margo MacDonald then went onto criticise the current regime in the Court of Session, which requires a McKenzie Friend to sit behind the party litigant they are in court to assist. Margo MacDonald said : “The view that figures in our papers has it that "a McKenzie Friend must sit behind" the person in court. That is of no use at all, as anyone knows, because people need someone beside them. It seems a nit-picking point, but it is a matter of whether the support or information that can be given to the person pleading their own case is functional or dysfunctional. I personally think that it is self-evident. We should just do it.”

Murdo Fraser MSP (Conservative) also attended the hearing in support of the McKenzie Friend petition, commenting on the level of support in Scotland for the introduction & use of McKenzie Friends saying : “I will briefly expand on that. Margo MacDonald has referred to the Which? survey. To be precise, I think that 85 per cent of Scots who were surveyed said that it would be useful to have a scheme whereby those who could not afford or find a lawyer could have a knowledgeable friend sitting beside them—that shows the level of support for the McKenzie friend.”

Petitions Committee heard that a survey from Which? showed 85% support in Scotland for McKenzie Friends. Murdo Fraser went on to criticise responses from Justice Secretary Kenny MacAskill on the issue, which apparently avoid explaining the points under discussion. Mr Fraser continued : “I wrote to the Cabinet Secretary for Justice on the matter before Christmas, and I got a reply on 31 December, which considered the idea of legislation to amend the current rules so as to allow lay representatives rights of audience. That misses the point. Mr Mackenzie is not looking for rights of audience for McKenzie friends; he just wants them to have the right to sit beside the litigant in court, not behind them. That is the point that Margo made well. All that requires is a change in the court rules. The procedure is simple, and I am not aware of any serious policy objection to such a change happening—it just needs to happen.”

Clearly, as in England & Wales, McKenzie Friends could easily exist in Scottish courts, with a mere change in the court rules, rather than the elaborate proposals of a legislative amendment to the Legal Services Bill, currently under consideration by the Scottish Parliament. However, as the Scots legal establishment have proved, and are still proving resistive to change, including the introduction of McKenzie Friends as they are used in the rest of the UK, legislation may well be required to ensure the public get the right to use a McKenzie Friend, rather than leaving the issue to be decided at a judges discretion on a case by case basis, which of course, the judges appear to prefer at this time.

Margo MacDonald raised the question of a McKenzie Friend being a right, rather than being left to the judge. Ms MacDonald said : ”As I should have mentioned earlier, there is also some debate as to whether we want the judge to have the determining voice on the matter. Should it be a right? I am not quite sure about that. I cannot see anything about that aspect in the papers that have come back to us.”

Nigel Don MSP (SNP). Nigel Don, the Parliamentary Liaison to Justice Secretary Kenny MacAskill appeared to criticise the Lord President for presenting two meanings of a McKenzie Friend, i.e. the “supportive friend” which has led to much confusion inside & outside the Parliament on this petition. Nigel Don said : “The papers that are before us are interesting, and they demonstrate that certain people have got the wrong end of some sticks. There is clear confusion as to what on earth a McKenzie friend is supposed to be. I thought that the Lord President put it kindly, saying that there are two meanings of the term. Actually, there was only ever one, but some people did not bother to find out what it was before deciding to call it something else. We now have two meanings, and that is not helpful.”

Mr Don continued, attempting to resolve the Lord President’s dual terms on McKenzie friends, saying : “If we go back to the original meaning, which is a friend who sits beside the person in court and helps them through, it is not difficult. I think that the Lord President is saying that he thought there was no reason for the possibility not to be there, but the rest of the papers seem to indicate that it was actually never there. However, that seems to have changed within the past few weeks. We should take it that there has been a step in the right direction, and we should not worry about why exactly that happened. It might be coincident with what is happening with the petition.”

Mr Don continued, saying : “If we can persuade our legal brethren and the gentlemen and ladies on the bench that it would be a good idea for the friend to be allowed to sit beside the party litigant, that would help—as I am sure judges would agree.”

On the subject of the Scottish Government’s proposals to make an amendment to the Legal Services Bill, giving McKenzie Friends a right of audience, Mr Don was less than enthusiastic, indicating the plan may well be dropped in favour of allowing McKenzie Friends to operate in Scotland as they do in all other jurisdictions.

Mr Don said on the rights of audience matter : “We need to be careful in the Parliament not to start telling judges what to do. Parliament has given, and the courts have acknowledged, rights of audience for lawyers. It would be very difficult to start deciding what the rights of audience should be for people who are not qualified as lawyers. It rightly belongs to the judge on the bench to decide what is helpful in that respect and what is not helpful. We must be careful how to phrase any recommendations on that point.”

“The other meaning—or rather, misuse—of "McKenzie friend" involves extended rights of audience for lay folk in certain circumstances. I suggest that, however important that point is, that is not what the petition is about, and it never was about that. That is a substantial issue that will have to be addressed in its own right at some point if we think that it is important to do so. I suggest that we cut that issue off from the clear purpose of the petition.”

Bill Butler MSP (Scottish Labour) also supported the drive to allow McKenzie Friends to sit beside their party litigant in court, saying : “I think that we should write to the Scottish Government and to the Lord President of the Court of Session to ask whether they will recommend that McKenzie friends should sit beside, rather than behind, the litigant. Perhaps we can ask them to respond to the petitioner's concerns about the Court of Session's lack of awareness of the existence of such a facility. I take Nigel Don's point that the facility is always at the court's discretion, and we do not want to tell the Lord President what to do, but it seems that the Lord President is more than amenable to the system. We need to disseminate the information among those who hold court.”

After further suggestions from Margo MacDonald, Murdo Fraser supported the Committee's intentions of seeking clarity on the McKenzie Friends issue, saying : “Nigel Don made a fair point in suggesting that things seemed to be happening; I would like to think that that is the case. However, it would be better to have some clarity, so that anybody who turns up in court with a friend knows that they will not suddenly be told by the presiding judge, "No, your friend cannot sit beside you—I don't like the look of him. He will have to sit at the back of the court." I am inclined to agree with the course of action that Bill Butler proposes.”

The Committee closed, authorising the following Written Questions for Petition 1247 to the Scottish Government & Lord President :

Scottish Government—

Lord President of the Court of Session—

• The Scottish Government states in its submission (PE1247/S) that the “mechanism of a supportive friend is already available in the Scottish Courts, in most cases, most of the time” however, the submissions from the Civil Justice Committee of the Law Society of Scotland (PE1247/I), the Scottish Court Service (PE1247/K) and Consumer Focus Scotland (PE1247/H) still refer to the introduction of such facility rather than it already existing. Will it/the Lord President therefore encourage a more widespread use of a “McKenzie friend” when appropriate to “assist a party litigant and, with the court’s permission, to address the court”, as recommended in the Lord Gill's Civil Courts Review and how it will do so ?

• Will it/the Lord President recommend that such “McKenzie Friend”should sit beside a party litigant and not behind them? If not, why not?

• What is its/the Lord President’s answer to all the points raised by Murdo Fraser MSP and Margo MacDonald MSP during the discussion?

Lord President of the Court of Session—

• What is your answer to the concerns of the petitioner (PE1247/V) regarding the lack of awareness of the Court of Session about the existence of such a facility? How will this be addressed and when?

• Can you confirm that there is a presumption in favour of a “McKenzie friend” to assist a party litigant, unless deemed unsuitable by the Court?

So really this all boils down to getting the seating arrangements in order – just as everyone else in the world enjoys their McKenzie Friend sitting next to them, instead of the peculiarly & utterly useless Scottish solution currently in place where the McKenzie Friend sits behind their party litigant, and of course, ensuring there is a presumption of the right to have a McKenzie Friend assist a litigant, rather than the matter being left at the court’s discretion on a case by case basis.

You can find out more about the English courts guidance on using McKenzie Friends, HERE and read my earlier reports on bringing McKenzie Friends to Scotland, here : McKenzie Friends for Scotland, the story so far

The facility of having a McKenzie Friend by one’s side in court has worked well in the rest of the world for decades. Surely we in Scotland can manage the same, even with the Law Society and Faculty of Advocates still shaking the bananas from the trees in protest ?

Holyrood asks Scotland's Chief Judge Lord Hamilton to implement McKenzie Friends after 40 years of legal establishment’s resistance to court reforms

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