Sheriff Courts ‘unfair’ delay on McKenzie Friends until 2011 may impact on current cases of party litigant's access to justice

McKenzie Friends in Sheriff Courts are delayed until 2011. MCKENZIE FRIENDS in Scotland are back in the news today as it was revealed Scotland’s Sheriff Courts are to take several more months before introducing similar rules already implemented in the Court of Session during mid-June 2010 which allowed the internationally acclaimed courtroom helper into Scotland’s civil courts some forty years after McKenzie Friends first came into existence in England & Wales. It had been thought McKenzie Friends would have appeared in the Sheriff Courts by the end of summer 2010.

Lord Hamilton enacted ban on McKenzie Friends being paid in Court of Session, Sheriff Courts may take different approach. The eight month delay has been caused apparently by considerations of issues such as whether expenses should be recoverable by a litigant who has the support of a McKenzie Friend. McKenzie Friends can already receive remuneration for their services in English courts, however the Lord President’s introduction of McKenzie Friends to Scotland’s court of session saw a ban on McKenzie Friends being able to charge for their services, a restriction some observers believe came about after the legal profession voiced concerns over their loss of business.

A statement (pdf) given to the Scottish Parliament’s Petitions Committee by the Sheriff Court Rules Council secretariat in response to questions over the timetable of implementation revealed : “I can confirm that the Sheriff Court Rules Council considered draft rules for the use of a McKenzie friend in civil proceedings in the sheriff court at its meeting on 6 August. The Council agreed with the recommendation of its working group that a different approach to that of the Court of Session was necessary namely that the procedure involved should be less formal with no certification as regards the suitability of the individual which the party litigant wishes to assist in the conduct of the proceedings being required. An amended draft will be considered by the Council at its next meeting on 5 November.”

The statement to the Petitions Committee continued : “The delay has arisen as the Council wishes to adopt a similar approach in principle to that of the Court of Session but at the same time wishes to reflect the different practices and procedures that operate within the sheriff court. In particular, there is a question whether expenses should be recoverable by a litigant who has the support of a McKenzie friend. This has been excluded in the Court of Session Rules. A decision has still to be taken as to whether this exclusion should also apply in the sheriff court.”

The statement concluded : “The Council will consider other draft rules in relation to the recommendations contained within the Civil Courts Review. Subject to the drafts being approved by the Council, it is anticipated that the rules will be submitted to the Lord President with a view to the draft instrument being made in January 2011 with the rules coming into force in February 2011.”

Legal insiders & consumer groups today criticised the long process of bringing McKenzie Friends to Scottish courts.

An official from one of Scotland’s consumer organisations said the implementation process “could have been handled better, ensuring McKenzie Friends came into play in the Court of Session & the Sheriff Courts at the same time”.

A solicitor pointed out today while it had now been the case for some months that party litigants could apply for a McKenzie Friend to assist them in the Court of Session, party litigants in Scotland’s Sheriff courts were continuing to face a long wait on being able to use a McKenzie Friend, thus raising the possibility Sheriff court users may be facing a ‘loss of access to justice’.

On the subject of expenses & remuneration of McKenzie Friends, he said : “Personally I have no difficulty with McKenzie Friends in Scotland being able to charge for their services, so long as their service is a valued one and productive for the party litigant."

He continued : "Allowing McKenzie Friends to be paid may well encourage groups such as law students & others willing to act as McKenzie Friends, assisting access to justice and giving some of our solicitors of the future valuable experience in court from the perspective of those who choose to represent their own interests.”

I have previously reported on the differences between Scotland & the rest of the UK on the remuneration of McKenzie Friends, here : Lord President softens rules on Scottish McKenzie Friends, remuneration issue still out of step with England & Wales

The Petitioner, Stewart MacKenzie raised the issue of the Sheriff Court delay, writing in a letter (pdf) to the Petitions Committee : “Whilst I am very pleased that the Sheriff Court Rules Council propose a less formal process for McKenzie Friends in Sheriff Courts, with “no certification as regards the suitability of the individual which the Party Litigant wishes to assist in the conduct of the procedure being required”, I am however very disappointed at the amount of time that the Sheriff Court Rules Council are taking to bring McKenzie Friends into force in the Sheriff Courts, particularly where they say that it could be February of 2011 before matters are finalised.”

Mr MacKenzie continued, critical of the delays : “That being so and given the fact that Lord Hamilton brought McKenzie Friends into force in the Court of Session on 15th June 2010, the Sheriff Court system’s implementation of McKenzie Friends will be at least eight months behind that of the Court of Session. I would also say that this may not have been fair to Party Litigants, whose cases are currently in the Sheriff Court system.”

Clearly there should have been a more uniformed approach to bringing McKenzie Friends to all of Scotland’s courts, particularly considering the time many agencies have taken to input on Petition 1247

You can read my earlier coverage of the campaign to bring McKenzie Friends to Scotland, and how having a McKenzie Friend in court may assist party litigants here : McKenzie Friends for Scotland : The story so far.

I reported on a useful guide for party litigants in the Court of Session, which includes the use of McKenzie Friends, here : Access to justice improved : McKenzie Friends advice now included in guide for Court of Session’s party litigants

All written submissions for the McKenzie Friend petition (Petition 1247) at the Scottish Parliament can be read here : Written submissions for Petition 1247, McKenzie Friends for Scotland

Holyrood Petitions Committee to keep McKenzie Friend campaign open until Sheriff Court plans are scrutinised by MSPs & formally introduced

Holyrood’s Petitions Committee heard latest on McKenzie Friends Petition. THE PETITIONS COMMITTEE of the Scottish Parliament have said they will not close Petition 1247 – McKenzie Friends for Scotland until MSPs have seen and had a chance to comment on the proposals from the Sheriff Court Rules Council to implement McKenzie Friends (otherwise known as lay assistants) in Scotland’s Sheriff Courts, following on from the Lord President's Act of Sederunt, passed earlier in the summer which introduced McKenzie Friends to Scotland’s Court of Session in mid June, some 40 years after McKenzie Friends were first introduced to the English court system.

Nigel Don MSP (SNP) said Petition should not be closed until Parliament scrutinises Sheriff Court plans. During the Petitions Committee’s Tuesday session, Committee member Nigel Don said progress was being made ‘very fast’ and expressed his gratitude to the Lord President for introducing McKenzie Friends to Scotland’s Court of Session. Mr Don went onto say the ”Sheriff Court Rules are being dealt with but they seem to have gone a little bit slower” and said he believed Petition 1247 should not be closed until the rules for the use of McKenzie Friends in Scotland’s Sheriff Courts are “in the public domain” and the Petitions Committee has a chance to see & comment on the Sheriff Court Rules Council proposals.

Mr Don’s comments came after the Petitioner, Perth based law reform campaigner Mr Stewart MacKenzie had written to the Petitions Committee urging members to contact the Sheriff Court Rules Council for a clearer timescale for the completion of the implementation of McKenzie Friends in Scotland’s Sheriff Courts, bearing in mind the Court of Session and the Lord President had managed to complete the process in around five weeks.

Petitions Committee Convener Rhona Brankin MSP concluded the discussion on Petition 1247, by continuing the petition until the Committee receive more information.

Petitions Committee 7th Sept. 2010 - Nigel Don : Parliament should have a chance to see & comment on the Sheriff Court rules for McKenzie Friends before petition is closed. (click image below to watch video)

I have reported previously on the Sheriff Court Rules Council’s discussions on the introduction of McKenzie Friends to Scotland's Sheriff Courts, here : Sheriff Court Rules Council reveals McKenzie Friends on course to help party litigants in Scottish Sheriff Courts by end of summer 2010

While party litigants in Scotland’s Court of Session have been able to apply for a McKenzie Friend to assist their case since mid June of this year, party litigants in Scotland’s Sheriff Courts, where most hearings in which McKenzie Friends will have a ‘helping hand’ take place, will have to wait until the Sheriff Court Rules Council formalise their plans for rules governing the use of lay assistants in Sheriff Courts before being able to apply to a Sheriff for lay assistance.

A spokesperson for the Sheriff Court Rules Council stated : “I can advise that the Sheriff Court Rules Council is still considering the procedure for McKenzie friends within the Sheriff Court and, in particular, is considering whether the approach by the Court of Session is appropriate in the Sheriff Court. At this stage, I am not able to advise when the provisions will be commenced.”

McKenzie Friends for Scotland. You can read my earlier coverage of the campaign to bring McKenzie Friends to Scotland, and how having a McKenzie Friend in court may assist party litigants here : McKenzie Friends for Scotland : The story so far. All written submissions for the McKenzie Friend petition (Petition 1247) at the Scottish Parliament can be read here : Written submissions for Petition 1247, McKenzie Friends for Scotland

Access to justice improved : McKenzie Friends advice now included in guide for Court of Session’s party litigants

Scottish Court Service offer guidance on McKenzie Friends. After a year of the Scottish Parliament considering the McKenzie Friend question for Scotland, in the form of Petition 1247, assisted by a ruling in the Court of Session last November, the Scottish Court Service have now updated their GUIDE FOR PARTY LITIGANTS “Raising & Defending ordinary actions in the Court of Session” (pdf) with details on how people who are conducting their own litigation (party litigants) can apply for “lay assistance”, (otherwise known as ”McKenzie Friends” in the rest of the world) to accompany them and offer help in proceedings in Scotland’s highest court, the Court of Session.

All party litigants in Scotland and anyone with an interest in the justice system are advised to read the guide, which can be downloaded from the Scottish Court Service website HERE in pdf format. Currently no similar guide exists for party litigants in Scotland’s Sheriff Courts, although with the Sheriff Court Rules Council currently considering how to implement the use of McKenzie Friends across Scotland’s lower courts, as I reported last month HERE, it is hoped something along the lines of the Court of Session’s party litigant guide will be issued for use in Scotland’s Sheriff courts where most small actions involving party litigants are heard.

Guidance from the Scottish Court Service on how to apply for McKenzie Friends. The updated guidance from the Scottish Court Service on McKenzie Friends statees : “If you are acting on your own behalf you may apply for permission to have a named individual support you. This is set out in Chapter 12A – Lay Assistance for Party Litigants (pdf) and is similar to the concept of a ‘McKenzie Friend’ in the English courts. You may choose to have this supporter sit beside or behind you at any hearings in court or in a judge’s chambers. The supporter is not allowed to speak on your behalf. You must apply for this permission by enrolling a motion. You motion must be accompanied by Form 12.A-A (Application by party litigant for lay support) which you and your proposed supporter must sign. Part 2 of Form 12.2-A) asks for confirmation on various matters from the proposed supporter. Motions will be granted unless the court is satisfied that to do so would not be conducive to the efficient administration of justice.”

Any permission:
* is not effective during any period when you are represented by a solicitors;
* is granted only until the proceedings are finished:
* is granted until the permission is withdrawn.

The court may withdraw permission on its own motion or on the motion of any party. The court must be satisfied that it would be contrary to the efficient administration of justice for the permission to continue.

You may want your supporter to :

* provide moral support;
* help to manage the court documents and other papers;
* take notes of the proceedings;
* quietly advise on -
- points of law and procedure;
- issues which you might want to raise with the court;
- questions which you might wish to ask witnesses.

Application for McKenzie Friend Form 12.A-A. You may show your supporter any document including court documents. The supporter may receive any information in connection with the proceedings which is in your possession. This would not be a contravention of any prohibition or restriction on the disclosure of the document or the information. The supporter would then be subject to any prohibition or restriction in the same way as if he or she were the litigant. Any expenses you incur as a result of an individual’s support are not recoverable expenses in the proceedings.

You can read my earlier coverage of the campaign to bring McKenzie Friends to Scotland, and how having a McKenzie Friend in court may assist party litigants here : McKenzie Friends for Scotland : The story so far. All written submissions for the McKenzie Friend petition (Petition 1247) at the Scottish Parliament can be read here : Written submissions for Petition 1247, McKenzie Friends for Scotland

McKenzie Friends ‘on the way’ to Scotland’s Sheriff Courts, application procedure to be ‘less formal’ than Court of Session

McKenzie Friends will soon appear to assist party litigants in Scotland’s Sheriff Courts. SHERIFF COURTS across Scotland are on the way to formalising the arrangements for unrepresented party litigants to obtain the services of a McKenzie Friend, the usually non-lawyer lay courtroom helpers which have provided invaluable assistance to thousands of party litigants in the English court system for the past forty years, after the Sheriff Court Rules Council let it be known their work on the issue is at draft stage, hopefully soon to be concluded.

A spokesman for the Sheriff Court Rules Council on being asked about the developments to bring McKenzie Friends to Scotland’s Sheriff Courts after I had reported earlier on the Sheriff Court Rules Council’s consideration of the issue, said yesterday : “I can confirm that the Sheriff Court Rules Council considered draft rules for the use of a McKenzie Friend in civil proceedings in the sheriff court at its meeting on 6 August.“

He continued : “The Council agreed with the recommendation of its working group that a different approach to that of the Court of Session was necessary namely that the procedure involved should be less formal with no certification as regards the suitability of the individual which the party litigant wishes to assist in the conduct of the proceedings being required. I should advise you also that the draft rules require some amendment so they are still under consideration by the Council.”

Lord Hamilton & Justice Secretary Kenny MacAskill were caught out by speed & widespread support of Holyrood McKenzie Friends Petition. The Sheriff Court Rules Council’s consideration of the McKenzie Friend question, follows the implementation of McKenzie Friends in Scotland’s Highest court, the Court of Session after Scotland’s Chief Judge, the Lord President, Lord Hamilton, and the Scottish Government were caught on the hop when a public petition (Petition 1247) was filed at the Scottish Parliament by Stewart MacKenzie, asking Holyrood’s Petitions Committee to address the 40 year exclusion of McKenzie Friends in Scotland’s courts. Video footage of the Scottish Parliament’s hearings on Petition 1247 can be viewed online at InjusticeTV.

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

Court of Session judge Lord Woolman granted Scotland’s first civil law McKenzie Friend in late 2009. Not long after Lord Gill’s report on civil law reforms was published, a decision in what appears to be Scotland’s longest running civil claims action, now in its f o u r t e e n t h year, 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 a decision taking the best part of a year to complete.

Law Society of Scotland & Faculty of Advocates initially objected to Holyrood Petition bringing McKenzie Friends to Scottish Courts. The exclusion of McKenzie Friends from Scottish Courts has been attributed by many seasoned law reform campaigners, several politicians and even some insiders within the legal profession to the lobbying power of the Law Society of Scotland, who, along with the Faculty of Advocates, initially opposed calls to introduce the internationally acclaimed lay courtroom helper to Scotland’s courts, over fears consumers would turn to McKenzie Friends to save themselves the notoriously unjustifiably huge solicitor’s fees which are typical of even the simplest court actions in Scotland, a well known obstacle to justice which has excluded many members of the public from gaining access to Scotland’s courts over the past four decades.

However, while the legal profession have traditionally viewed themselves as the providers of access to justice to Scots, the fact is the legal profession are simply a multi billion pound business, who for many years have themselves monopolised Scots access to the court system & access to legal services, in effect, selecting who among Scotland’s population had access to justice, while excluding those who the Law Society decided should not be allowed near a court. Many know this to be true, as do many of Scotland’s highest judges. There are thousands of examples a year to support this view, with a trail of people left out in the cold by the legal profession who as a whole have little regard for the rights of individuals unless there is a huge amount of money to be made from their predicament.

Placing the interests of what is nothing more than a business above the rights of Scots to enjoy unfettered access to justice, is wholly wrong, and for this reason, many consumer groups across the UK backed the introduction of McKenzie Friends to Scotland’s courts, to increase Scottish consumer’s access to justice.

A senior official from one of Scotland’s consumer organisations today welcomed the developments from the Sheriff Court Rules Council, expressing hope the Scottish Court Service would offer written guidance in all of Scotland’s Sheriff Courts to assist members of the public on the issue, allowing informed choices to be made on using McKenzie Friends in cases which may benefit consumers & the interests of justice considerably by the use of lay assistants in many common types of cases which currently fall victim to unscrupulous solicitors who unnecessarily complicate even the simplest of Sheriff Court cases to ensure larger fees for their little input.

However, a Scottish Parliament insider said he was slightly disappointed the Sheriff Court Rules Council had not been able to proceed the matter at a faster pace, as the Petitions Committee was due to hear Petition 1247 in September and had hoped to report the availability of McKenzie Friends in all of Scotland’s courts, bringing the Committee’s consideration of the issue to a successful conclusion.

You can read my earlier coverage of the campaign to bring McKenzie Friends to Scotland, here : McKenzie Friends for Scotland : The story so far

All written submissions for the McKenzie Friend petition at the Scottish Parliament can be read here : Written submissions for Petition 1247, McKenzie Friends for Scotland

Lord President softens rules on Scottish McKenzie Friends, remuneration issue still out of step with England & Wales

Scotland’s Lord President, Lord Hamilton. LORD HAMILTON, Scotland’s Chief Judge has written to the Scottish Parliament’s Petitions Committee informing MSPs of a slight softening of the requirements of McKenzie Friends or ‘lay assistants’ applying to assist unrepresented party litigants in Scotland’s Court of Session. However while the changes proposed to the terms of who can be a McKenzie Friend in Scotland are welcome small steps, there are still a number of issues yet to be settled to bring Scottish Courts into line with the rest of the UK, after McKenzie Friends first came into existence in an English courtroom forty years ago.

The changes, although minimal, are a retreat from Lord Hamilton’s previous plans to question those applying to be a McKenzie Friend whether they are related to the party litigant. It will now be the case, according to the Lord President the document which accompanies the application for lay support requires now only to state whether or not the supporter has a financial interest in the case and if so to set out what that is.

Lord Hamilton’s letter to Petitions Committee informed MSPs of rule changes. Lord Hamilton wrote : “The draft Act of Sederunt was considered by the Court of Session Rules Council at its meeting on 10 May. I refer to item 6 of the draft minutes of the meeting. The Council took account of the substantive points made in the Committee’s discussion at its meeting on 4 May. The draft was modified slightly so that document which accompanies the application for lay support requires now only to state whether or not the supporter has a financial interest in the case and if so to set out what that is.”

On the thorny subject of McKenzie Friends being paid for their help in Scottish courts, as they are in England & Wales – an issue now supported by case law, the Lord President informed the Parliament : “And the prohibition on remuneration was confined to remuneration from the litigant; it is not (and never was) intended to prohibit members of advice services from providing lay support on the basis that they were remunerated by a public body or a charitable organisation. Indeed, support from those sources is manifestly to be encouraged.”

The reference to case law in the English courts family division to support the right of a McKenzie Friend to charge for their services, reports that Mr Justice Munby, ruling over a case of costs arising from contentious contact and residence litigation between unmarried parents [N (A Child) [2009] EWHC 2096 (Fam)] concluded the child’s father's McKenzie Friend "is entitled to charge, if he can find clients willing to pay his fees, at an hourly rate which can hardly be said to be extravagant when contrasted with the fees one frequently finds being charged to privately paying clients in family cases".

Serious questions remain over the Lord President’s desire to forbid any payment to McKenzie Friends in Scotland, with some campaigners questioning whether the prospect of not even a small reward for the services of a lay assistant may well put off many capable individuals from offering to serve as McKenzie Friends to unrepresented party litigants, particularly when the lay assistant scheme is passed for use in Scotland’s Sheriff Courts later this year, as I reported earlier here : Sheriff Court Rules Council reveals McKenzie Friends on course to help party litigants in Scottish Sheriff Courts by end of summer 2010

Lord Hamilton also informed Holyrood he would keep the arrangements for McKenzie Friends ‘under review’. Lord Hamilton went onto inform MSPs there had been no difficulties reported to him so far over the McKenzie Friend issue : “The Act of Sederunt was duly made (SSI 2010/205). It came into force in relation to lay support on 15 June. At the time of writing it is not possible to offer the Committee any information about how it is working out in practice, other than to say that no difficulties have yet been communicated to me. Once the new arrangements have been in place for a reasonable period, I intend to survey my colleagues to establish the effectiveness of them. I would wish to stress that the arrangements will be kept under review and that, if there are any difficulties, they can be communicated to my Private Office and taken forward with the Rules Council as appropriate.”

Lord Hamilton concluded his letter to the Petitions Committee, informing MSPs the Sheriff Court Rules Council were drafting rules for the Sheriff Courts later in the summer : “That deals, I think, with the Court of Session. So far as the sheriff court is concerned, I understand that the Rules Council continues to have the matter under consideration and anticipates considering a draft of amendments of the sheriff court rules at its meeting on 6 August.”

Recent background to McKenzie Friends in Scotland :

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.

You can read my earlier coverage of the campaign to bring McKenzie Friends to Scotland, here : McKenzie Friends for Scotland : The story so far

All written submissions for the McKenzie Friend petition at the Scottish Parliament can be read here : Written submissions for Petition 1247, McKenzie Friends for Scotland

Questions remain over access, costs & funding of McKenzie Friends in Scottish Courts as Rules Council minutes reveal ‘devil in the detail’

Scotland’s Lord President Lord Hamilton. As the minutes of the most recent meeting of the Court of Session Rules Council were published earlier this week, further details emerged on the discussions between members of Scotland’s judiciary & legal profession over the now confirmed introduction of McKenzie Friends, or as the Lord President prefers to call them “Lay Assistants” to Scotland’s courts. Details of the meeting included how the now signed Act of Sederunt allowing McKenzie Friends would take shape, although mention of exactly why it has taken forty years and a petition to the Scottish Parliament) to bring lay assistants to Scottish Courts was unsurprisingly avoided.

The Lord Justice Clerk, Lord Gill who recommended McKenzie Friends with a right of audience be introduced to Scotland was present at Rules Council meeting. During the Court of Session Rules Council meeting which took place on 10 May 2010, those present, Lord Hamilton & Lord Reed, Ronnie Clancy QC, Graeme Hawkes (Advocate) from the Faculty of Advocates, along with four members of the Law Society of Scotland, Gordon Keyden (Solicitor), Robin Macpherson (Solicitor), Duncan Murray (Solicitor) & Sydney Smith (Solicitor) discussed the McKenzie Friend issue, going onto acknowledge the significant alteration to lay courtroom assistance in Scottish courts had ‘been inspired’ by a public petition at the Scottish Parliament. Others present included the Lord Justice Clerk, Lord Gill (who earlier recommended McKenzie Friends be introduced to Scottish Courts via his Civil Courts Review), & Colin McKay of the Scottish Government’s Constitution, Law and Courts Directorate.

The published minutes (pdf) reflected the following discussions :

6.1 The Council considered a draft set of rules relating to “McKenzie Friends”. The Council was advised that the draft rules had been inspired by a petition which is currently being considered by the Public Petitions Committee at the Scottish Parliament. The petition urges the introduction of a facility in the Scottish courts whereby a party litigant may be assisted by a lay supporter.

6.2 The Council noted that the draft rules before it did not seek to confer any rights of audience on lay persons. It also noted that the Civil Courts Review Report had included a recommendation for the conferral of such a right. The Council was advised that it was not thought that this recommendation would be capable of implementation by rules of court without further primary legislation. However, the Council noted that it was understood that this recommendation was under consideration for early implementation by the Scottish Government.

6.3 In relation to the provision of lay assistance to party litigants through means other than addressing the court, the Council noted the terms of correspondence between the Public Petitions Committee and the Lord President. It was noted that the Lord President had invited Lord Reed and Lord Hodge, as judges with responsibility for administration of Court of Session business, to consider the matter and make recommendations. Following on from recommendations made by Lord Reed and Lord Hodge, the Lord President had agreed that it would be appropriate to make an Act of Sederunt amending the rules in certain respects to acknowledge and regulate lay assistance. The draft provisions before the Council sought to achieve this.

6.4 The Council noted that the Public Petitions Committee at the Scottish Parliament had indicated that it was content for the Lord President to proceed to make the court rules on this matter. It was noted that the latest draft of the rules had been adjusted to take into account points that had been recently been raised by the Committee in correspondence.

6.5 The Council discussed the extent to which the provisions should be included in the body of the rules or by declaration in a form. It also discussed the extent to which the draft rules would discourage or prevent the provision of lay assistance by persons who might be unsuitable for the role. It was agreed that the Private Office would consider the Council’s discussions on these matters in finalising the Chapter which is to be inserted into the Rules.

I reported on the above meeting in an earlier article, published here : McKenzie Friend ‘success’ for Scotland as Court of Session Rules Council signals June 2010 implementation after 40 years of Law Society opposition and you can read more on the rules in the Act of Sederunt, which resulted from the Court of Session Rules Council meeting in a further article here : McKenzie Friend ‘Act of Sederunt’ published, Lord President enforces strict conditions, calls Scots non-lawyer courtroom helpers “Lay Assistants”

For further reference, readers should also consider Scotland’s First McKenzie Friend in a Civil Court, granted by Lord Woolman in M.Wilson v North Lanarkshire Council & Others (Case ref : A1628/01) which I reported on here : First use of McKenzie Friend in Scotland as Court of Session sweeps aside 40 years of lawyers monopoly over public access to justice

While the Act of Sederunt on ‘Lay Assistants’ is due to come into force around 15 June 2010, according to legal insiders, there are still many questions remaining over what will happen if McKenzie Friends are refused, and particularly in which types of cases McKenzie Friends, or “Lay Assistants” may be refused, together with what rights of appeal party litigants will have over a judge’s decision to refuse the use of a McKenzie Friend, or “Lay Assistant”.

A solicitor said this afternoon there should be a properly laid down procedure for right of appeal if a litigant’s request for a lay assistant is refused, as not having one will inevitably tie up court time and confuse party litigants even further.

It has also emerged today that the cost of applying for a McKenzie Friend (Lay Assistant) in a Scottish court could be at least £45, being the price of a motion in the Court of Session. However, according to litigants with cases already in the Court of Session, party litigants may well be looking at about £100 (including the motion fee) if travelling to & from the Court of Session in Edinburgh is required, with additional costs of another £150 up to as much as £750 if a party litigant is required to pay the other sides costs, depending on how long the hearing lasts.

An official with one of Scotland’s Consumer organisations expressed her fears the costs of McKenzie Friend applications may be an obstruction to unrepresented litigants obtaining the necessary help in Scotland’s Civil Courts.

The official said : “Given the use of a McKenzie Friend would greatly speed up the court process in cases where the party litigant is often unrepresented due to a lack of funds and therefore an inability to obtain legal representation, I believe there should be a review of the charges on lay assistance, to encourage the wider use of McKenzie Friends in Scotland’s courts.

She continued : “However, if the report of £45 is accurate, I think the Scottish Court Service could do some good by halving this figure at least, to lessen the burden on party litigants who are already struggling in civil court cases which could be progressed much faster if a McKenzie Friend were there to help.”

While the issue of the cost of applying for a McKenzie Friend in Scotland has been raised, there also remains the thorny issues of McKenzie Friends or ‘Lay Assistants’ in Scotland being allowed to charge for their services, a right which is supported by case law in England & Wales.

While the Lord President has been adamant in his Act of Sederunt that McKenzie Friends or “Lay Assistants” cannot charge for their services, legal insiders have condemned Lord Hamilton’s proposals on the remuneration question as “unenforceable”, with MSPs raising the issue in the Scottish Parliament, particularly given the terms of the non-remuneration policy, which may incur significant disadvantages, to the point of exclusion, of any lay assistants who may be employed by a Non Governmental Organisation or a Charity.

The Petitions Committee of the Scottish Parliament will again discuss Petition 1247 later in the summer.

You can read my earlier coverage of the campaign to bring McKenzie Friends to Scotland, here : McKenzie Friends for Scotland : The story so far

All written submissions for the McKenzie Friend petition at the Scottish Parliament can be read here : Written submissions for Petition 1247, McKenzie Friends for Scotland

McKenzie Friend ‘Act of Sederunt’ published, Lord President enforces strict conditions, calls Scots non-lawyer courtroom helpers “Lay Assistants”

Scotland’s Lord President Lord Hamilton. The rules governing the use of McKenzie Friends in Scotland’s courts, which are set to come into force by the end of June of this year, have finally been published on the Office of Public Sector Information website, confirming that for the first time in Scotland, some four decades after McKenzie Friends came into existence in the now famous English court case McKenzie v McKenzie (1970), the internationally acclaimed non-lawyer courtroom helper will finally be available to unrepresented party litigants in Scottish civil courts.

However, while the Act of Sederunt, signed last Tuesday by the Lord President will finally allow McKenzie Friends to be used in Scotland, the terms of the Lord President’s language in the guidance have confirmed the fears of many that the usage of the internationally acclaimed non-lawyer courtroom helper will be subject to strict conditions & restrictions in Scottish courts, apparently after demands from representatives of the Law Society of Scotland & Faculty of Advocates to limit the spread & availability of McKenzie Friends in civil law cases.

Scotland’s legal establishment are thought to have intervened against the full implementation of McKenzie Friends out of fear that law firms would lose business to the much cheaper, and sometimes free non-lawyer McKenzie Friend, or as the Lord President prefers to use in Scotland a “Lay Assistant”, after Lord Hamilton claimed Scots were too ignorant to understand the meaning of the term “McKenzie Friend”.

It has emerged from the published guidance the Lord President intends to forbid McKenzie Friends in Scotland from receiving any payment for their service, this despite the fact that case law exists in England & Wales, allowing a McKenzie Friend to receive remuneration for their services. This issue had come in for severe criticism by campaigners, consumer organisations, experienced McKenzie Friends from English courts, and even MSPs at the Scottish Parliament, where recently, the SNP’s MSP Nigel Don (North East Scotland) criticised Lord Hamilton’s protectionist block on McKenzie Friends receiving payment for their services.

Nigel Don MSP criticised Lord President over ‘non-payment’ of Scottish McKenzie Friends. As I reported in an earlier article on the latest Petitions Committee debate of the McKenzie Friend petition, Committee member Nigel Don criticised Lord Hamilton’s restrictions over paying McKenzie Friends, saying : “… the Lord President's letter of 19 February states immediately thereafter that the McKenzie friend—or lay assistant, as we should perhaps now describe him—is "to receive no remuneration for his or her services in any form.I can quite understand why the Lord President should take that view, but there is good reason to believe that that might not be the best view.”

Mr Don continued : “Given that many of those who might act as lay assistants might be paid by a charity such as a citizens advice bureau to help those who need help, it seems a step too far to assert that the lay assistant should receive no remuneration from anywhere. I can well understand that the Lord President and his colleagues do not want, as it were, second-class lawyers hawking themselves around as McKenzie friends, but I am slightly concerned that the suggested rules go a bit too far.”

During the same Petitions Committee hearing, another thorny issue arose, over the Lord President’s apparent hostility to using the term “McKenzie Friend” in Scottish Courts, which has resulted in Lord Hamilton’s published rules using the term “Lay Assistant” instead of “McKenzie Friend”.

Nanette Milne MSP (Scottish Conservative) Nanette Milne, the Conservative MSP member of the Petitions Committee criticised the Lord President’s refusal to use the term McKenzie Friend in Scotland, instead preferring to apply the term “Lay Assistant. Nanette Milne said : “In addition, the petitioner obviously still has concerns about the terminology of "lay assistant" rather than "McKenzie friend". Given that Which? magazine and Consumer Focus appear to use only the term "McKenzie friend", can we perhaps press for the retention of that term ?”

A third, even more restrictive condition has also made its way to the published Act of Sederunt which has already resulted in significant criticism from consumer groups, that of requiring a potential McKenzie Friend, or “Lay Assistant” to sign a certificate and give details about themselves which are generally not required in most other jurisdictions where McKenzie Friends operate.

Lord Hamilton’s Act of Sederunt – Overly restrictive and forty years too late. The terms of the Act of Sederunt, allowing McKenzie Friends to operate in Scotland’s Court of Session are as follows : 12A.1.—(1) At any time during proceedings a party litigant may apply to the court for permission to have a named individual assist the litigant in the conduct of the proceedings by sitting beside or behind (as the litigant chooses) the litigant at hearings in court or in chambers and doing such of the following for the litigant as he or she requires—

(a) providing moral support;
(b) helping to manage the court documents and other papers;
(c) taking notes of the proceedings;
(d) quietly advising on—
(i) points of law and procedure;
(ii) issues which the litigant might wish to raise with the court;
(iii) questions which the litigant might wish to ask witnesses.

(2) It is a condition of such permission that the named individual does not receive from the litigant, whether directly or indirectly, any remuneration for his or her assistance.

(3) The court may refuse an application under paragraph (1) only if—

(a) it is of the opinion that the named individual is an unsuitable person to act in that capacity (whether generally or in the proceedings concerned); or

(b) it is of the opinion that it would be contrary to the efficient administration of justice to grant it.

(4) An application under paragraph (1) is to be made by motion and accompanied by a document, signed by the litigant and the named individual, in Form 12.A-A.

(5) Permission granted under paragraph (1) endures until the proceedings finish or it is withdrawn under paragraph (6); but it is not effective during any period when the litigant is represented.

(6) The court may, of its own accord or on the motion of a party to the proceedings, withdraw permission granted under paragraph (1); but it must first be of the opinion that it would be contrary to the efficient administration of justice for the permission to continue.

(7) Where permission has been granted under paragraph (1), the litigant may—

(a) show the named individual any document (including a court document); or

(b) impart to the named individual any information, which is in his or her possession in connection with the proceedings without being taken to contravene any prohibition or restriction on the disclosure of the document or the information; but the named individual is then to be taken to be subject to any such prohibition or restriction as if he or she were the litigant.

(8) Any expenses incurred by the litigant as a result of the support of an individual under paragraph (1) are not recoverable expenses in the proceedings.”.

Lord President’s proposed certificate to be signed by McKenzie Friends - “Too Protective”. A Scottish Parliament source said that members were unhappy with the tone of the Act of Sederunt, considering the amount of meetings the Petitions Committee had devoted to the McKenzie Friend Petition. Among the questions asked on the certificate are payment, relationship to the applicant, legal experience, and confidentiality : “Does the named individual have relevant experience (e.g. acted as authorised lay representative in the sheriff court, acted as a McKenzie Friend in England and Wales, legal qualification, experience as a lay adviser on legal matters)? If so, please briefly describe that experience.”

Those wishing to apply to the court to assist a party litigant as a McKenzie Friend in Scotland must also declare whether they are related or not to the litigant, or whether they have a financial interest in the outcome of the case, also confirming they are not receiving remuneration from the litigant, directly or indirectly, for their assistance and will not receive any such remuneration. Additionally, they must accept that documents and information are provided to them by the litigant on a confidential basis and undertake to keep them confidential.

One Holyrood MSP dubbed Lord Hamilton’s plans “Too protective of the courts system and designed to put members of the public at a disadvantage when using a McKenzie Friend against experienced legal teams.” He went onto criticise the focus on ensuring a McKenzie Friend received no payment , saying “it looked like the legal profession had played their hand to protect their business interests.”

A senior official with one of Scotland’s consumer organisations said the plan to force the signing of certificates would put many people off being a McKenzie Friend and queried whether this was the intention all along. The official said : “This requirement of a certificate will limit McKenzie Friends from developing into a service which Scots consumers could use or rely on where they cannot secure often costly legal representation. There’s no reason why Scots court users shouldn’t have the same exact rights for a McKenzie Friend as are used in England. This proposal should be dropped.”

An experienced litigant condemned Lord Hamilton’s restrictions over Scottish McKenzie Friends, saying : “It is absurd to require a person to give details of any previous legal experience, qualifications or family relationships, and I see that Lord Hamilton is still insisting - regardless of existing case law - that no payment (not even expenses) can be claimed. I hope and expect that the Justice Committee will be pushed to see the necessary amendments included.”

It was indicated today Lord Hamilton’s Act of Sederunt will not be the final word on bringing McKenzie Friends to Scotland, as the Petitions Committee have indicated they will look again at the issue later in the year, and there are still plans by the Scottish Government to bring an Amendment to their beleaguered Legal Services Bill at its Stage Two hearing at the Scottish Parliament.

You can read my earlier coverage of the campaign to bring McKenzie Friends to Scotland, here : McKenzie Friends for Scotland : The story so far

All written submissions for the McKenzie Friend petition at the Scottish Parliament can be read here : Written submissions for Petition 1247, McKenzie Friends for Scotland

McKenzie Friend ‘success’ for Scotland as Court of Session Rules Council signals June 2010 implementation after 40 years of Law Society opposition

Scotland’s Lord President passes McKenzie Friends hurdle. Confirming my report earlier in February of this year on the Lord President, Lord Hamilton’s plans to formally introduce McKenzie Friends to Scotland’s courts, it has been announced the Court of Session Rules Council, the body which oversees rules regarding any matters which the Court could regulate by an ‘Act of Sederunt’, has discussed the issue of McKenzie Friends at its Monday meeting of earlier this week, and is now in the process of drawing up the rules which will allow & govern the use of McKenzie Friends in the Court of Session by the end of June 2010.

A spokeswoman for the Scottish Courts Service said yesterday : “I can confirm that the Rules Council met on Monday and agreed to draw up rules in relation to McKenzie Friends. I expect these to be drafted within a few days and I anticipate that they be be formally adopted by the end of June.”

While the Lord President's Office had no further comment to add to this statement, campaigners & consumer organisations expressed their hope the rules to be drawn up for Scots McKenzie Friends will mirror that of the guidance used in the English courts system, and not prove as restrictive as the Lord President’s initial proposals announced in February, which were criticised by consumer groups as being too strict.

An official with one of Scotland’s consumer organisations said : “I am delighted Scottish consumers will shortly have the invaluable assistance a McKenzie Friend can provide in court for those who cannot obtain or afford legal representation."

He continued : “I look forward to reading the details of the rules by which Scotland’s courts system will treat those acting as a McKenzie Friend and would hope there is a strong presumption in favour of a litigant having the right to a McKenzie Friend as is the case in England & Wales.”

Scottish Parliament asked Lord President ‘to keep them updated on McKenzie Friend law. Questions which were raised late last week over the Scottish Parliament’s Petitions Committee’s recent letter to the Lord President have now also been resolved with the release of documents from the Parliament, confirming the Committee had asked the Lord President for “an update once the Act of Sederunt has come into force”, rather than choosing to raise specific key points which came out of last Tuesday’s meeting of the Petitions Committee, namely those of remuneration of a McKenzie Friend, usage of the term “McKenzie Friend” and the involvement, or interest of a McKenzie Friend in the case in which they are assisting. The Petitions Committee indicated they would next consider the McKenzie Friend petition on 7 September 2010.

I reported on last week’s Petitions Committee discussion on Petition 1247 (McKenzie Friends for Scotland) along with video footage of the Committee’s deliberations, here : Questions over Holyrood's exchanges with Lord President as Scots McKenzie Friend law to be heard at Court of Session Rules Council meeting

The Court of Session Rules Council, who are now drafting the rules on McKenzie Friends, consists of the Lord President ex officio, two other judges of the Court of Session appointed by the Lord President, five members of the Faculty of Advocates appointed by the Faculty and five solicitors appointed by the Council of the Law Society of Scotland. Members hold office for three years and are eligible for reappointment provided that they retain the qualifications for membership.

Court of Session Rules Council Current Membership :

• The Rt. Hon. Lord Hamilton, Lord President (Chair)
  
• The Rt Hon Lord Reed
  
• The Hon. Lady Dorrian
  
• Mr. Ronnie Clancy, Q.C., Faculty of Advocates
  
• Mr. Gerry J.B. Moynihan, Q.C., Faculty of Advocates
  
• Ms. Lesley Shand, Q.C., Faculty of Advocates
  
• Mr. Eugene P. Creally, Faculty of Advocates
  
• Mr. Graeme Hawkes, Faculty of Advocates
  
• Mr. Gordon Keyden, Law Society of Scotland
  
• Mr. Robin Macpherson, Law Society of Scotland
  
• Mr. Duncan Murray, Law Society of Scotland
  
• Mr. Sydney Smith, Law Society of Scotland
  
• Mr. Fred Tyler, Law Society of Scotland

It should be noted the Faculty of Advocates & the Law Society of Scotland in written submissions to the Scottish Parliament both opposed the introduction of McKenzie Friends to Scotland’s Civil courts. You can read my coverage of the Faculty of Advocate's objections HERE and the Law Society of Scotland’s objections HERE.

However, despite both the major power blocks of the Scottish legal profession obstructing & opposing the introduction of McKenzie Friends to Scottish Civil courts, the issue seems to have cleared the Court of Session’s Rules Council, and we now have an apparent success which should benefit all Scots who require access to justice and our courts.

The draft rules are expected to be available soon, and will be published as I receive them.

In the meanwhile you can read my earlier coverage of the campaign to bring McKenzie Friends to Scotland, here : McKenzie Friends for Scotland : The story so far and all written submissions for the McKenzie Friend petition at the Scottish Parliament can be read here : Written submissions for Petition 1247, McKenzie Friends for Scotland

Questions over Holyrood's exchanges with Lord President as Scots McKenzie Friend law to be heard at Court of Session Rules Council meeting

Holyrood Committee’s exchanges with Lord President questioned. QUESTIONS have been raised over the outcome of Tuesday’s Petitions Committee hearing on Petition 1247 (McKenzie Friends for Scotland) after it emerged late yesterday that while two members of the Petitions Committee had raised important points to be clarified with Scotland’s Lord President, Lord Hamilton, over the proposed Act of Sederunt to allow McKenzie Friends in Scottish courts, the actual letter sent from the Petitions Committee to the Lord President simply stated "Could you provide an update to the Committee once the Act of Sederunt has been brought into force".

This latest extraordinary turn of events in the campaign to bring McKenzie Friends to Scotland’s courts, a non-lawyer courtroom helper which unrepresented party litigants have been successfully using in England & Wales for the past forty years, comes after last Tuesday’s Petitions Committee hearing concluded its latest deliberations on the McKenzie Friends petition by stating on the Scottish Parliament’s Petition 1247 web page : “4 May 2010 : The Committee agreed to write to the Lord President of the Court of Session seeking a response to specific points.” after two of the Petitions Committee members, MSPs Nanette Milne & Nigel Don raised the thorny issues of the usage of the term “McKenzie Friend” and the question of whether a McKenzie Friend could be remunerated for their services – both key points the Lord President has proved highly resistant to discuss or implement.

Scottish Parliament Petitions Committee 4 May 2010 : McKenzie Friends should remain McKenzie Friends in Scotland (click video to watch)

The transcript of Tuesday’s proceedings on McKenzie Friends :

Nigel Don MSP (SNP) Nigel Don, member of the Petitions Committee & Parliamentary aide to Justice Secretary Kenny MacAskill raised two significant points the Lord President had failed to resolve over the year long battle to bring McKenzie Friends to Scotland’s courts. Mr Don initially praised Lord Hamilton “for getting on with things”, going onto firstly tackle the question of a ‘certificate’ which Lord Hamilton initially proposed should be required for all potential McKenzie Friends to sign prior to their acceptance by the court – a move heavily criticised by politicians, law reform campaigners and even several consumer bodies including Which? & Consumer Focus Scotland.

Nigel Don said : “I am probably not the only one who feels slightly confused about where we have got to. The issue seems to be moving so fast that I am not sure on which side of the net the ball has ended up. However, we should commend the Lord President for getting on with things and for explaining, in his most recent letter, some points that we did not get round to discussing during our previous meeting due to shortness of time.

“I want to raise two points about the suggested rules in the Lord President's letter of 19 February, which predates our previous meeting. Paragraph 5 of that letter states: "The certificate should ... confirm that the lay assistant has no interest in the case".

“I get the impression from the Lord President's subsequent letter that he sees no problem with the lay assistant being a family member or friend of the litigant. Therefore, I draw the conclusion that the suggestion that the lay assistant should have "no interest" should be translated as "no greater interest than the litigant". That is what I would have expected, so I have no problem with that. However, I thought that I had better put that on record in case I am wrong.”

Mr Don went onto raise the equally thorny issue of whether a McKenzie Friend can be paid for their services, an issue I reported on in mid-April, revealing actual case law from the English Family Courts division, which supports a McKenzie Friend’s entitlement to charge for their services. Nigel Don at the April hearing appeared to support the Lord President’s resolute position that no McKenzie Friends should receive money for their services, however Mr Don now appears to have changed his position substantially.

Nigel Don continued : “Secondly, the Lord President's letter of 19 February states immediately thereafter that the McKenzie friend—or lay assistant, as we should perhaps now describe him—is "to receive no remuneration for his or her services in any form".

“I can quite understand why the Lord President should take that view, but there is good reason to believe that that might not be the best view. Given that many of those who might act as lay assistants might be paid by a charity such as a citizens advice bureau to help those who need help, it seems a step too far to assert that the lay assistant should receive no remuneration from anywhere. I can well understand that the Lord President and his colleagues do not want, as it were, second-class lawyers hawking themselves around as McKenzie friends, but I am slightly concerned that the suggested rules go a bit too far.”

“Can we ask the Lord President to consider that point, so that those with experience of the subject who could well help people are not required to act completely for nothing when a charity might support them ?”

Nanette Milne MSP (Scottish Conservative) Nanette Milne, the Conservative MSP member of the Petitions Committee joined the debate, raising the highly contentious issue of the Lord President’s stubborn resistance to using the term “McKenzie Friend” in his plans for bring in the Act of Sederunt to allow, “Lay Assistants”, as Lord Hamilton would rather call “McKenzie Friends” into Scottish courts. Nanette Milne said : “In addition, the petitioner obviously still has concerns about the terminology of "lay assistant" rather than "McKenzie friend". Given that Which? magazine and Consumer Focus appear to use only the term "McKenzie friend", can we perhaps press for the retention of that term ?”

Scotland’s Lord President, Lord Hamilton. Lord Hamilton’s hostility against using the term “McKenzie Friend” – which is accepted in most international jurisdictions where the McKenzie Friend is used, has left many involved in the Scottish debate on McKenzie Friends questioning why the Lord President apparently feels even after forty years, that Scotland should, not join the rest of the world in allowing what is a uniquely named and internationally recognised courtroom helper to assist the growing numbers of unrepresented court users in Scotland who find themselves unable to obtain legal representation.

Which? reported that 85% of Scots would like to see McKenzie Friends allowed in our courts. In an earlier report on the McKenzie Friend petition, I revealed the Lord President had put forward several reasons to the Petitions Committee why he felt the term “McKenzie Friend” should be swapped with the term “Lay Assistant”, where Lord Hamilton alleged Scots were too ignorant to know what a McKenzie Friend actually is, this despite research & polls taken by consumer organisations such as Which? who reported that 85% of those questioned during recent research carried out by Which? on Scottish Legal Services thought it would be a good idea to allow McKenzie Friends in Scotland’s courts.

Petitions Committee Convener Frank McAveety attempted to draw the debate to a close with a continuance of the petition, although one important issue raised by the Committee Clerk remained, namely that of whether the Committee “should push the Lord President to defer consideration of the issue.”

Replying to the Convener, Nigel Don said he was against deferring the planned enacting of the Act of Sederunt at Monday’s Court of Session’s Rules Council meeting.

Nigel Don said : “My instinct is not to defer anything at all. I am sure that the Lord President has the good of the system at heart, as people do not get to be Lord President without having a pretty good idea of what goes on in the courts. I think that we should trust him to get on with it. If, one way or another, he and others come to the conclusion that they did not get it quite right first time round, I suspect that the speed with which he is now acting demonstrates that he will be swift to amend things. I do not think that we should defer anything for the sake of it.”

The Committee agreed to continue Petition 1247, and write to the Lord President on the issues raised during the hearing, however as revealed by Holyrood insiders late yesterday, the Committee had apparently changed their mind and simply asked Lord Hamilton to update them once the Act of Sederunt has been brought into force, leaving many questions over whether the Lord President had amended any of his ‘overly protective’ plans announced in February, which have formed the bunk of debate & criticism since being proposed by Lord Hamilton as a way forward.

Mr MacKenzie, the petitioner said this afternoon : “I find it strange the Committee has proceeded in this way, apparently letting the Lord President off the hook on some very serious points of contention. They are not asking for a response to the specific points raised by the two MSPs on the Committee last Tuesday and their own minutes confirm that is indeed what was agreed to be done.”

A Holyrood insider also joined in criticising the Petitions Committee, expressing concern the Lord President had not been called in to be questioned on the issue. He said : “It appears the Committee said one thing then did something completely different. Not a very satisfactory outcome given the Lord President is to act on the McKenzie Friend issue at Monday’s Court of Session Rules Council meeting.”

He continued : “I would also have to say for what is a fundamental shift in the rights of court users to have a McKenzie Friend accompany them as never before in Scotland, it has been a significant failure of the Petitions Committee not to have invited Lord Hamilton in to be questioned over the issue. People must be left wondering why Lord Hamilton or the Petitions Committee have dodged such an open debate on the issue, preferring to exchange what can only be described as series of bizarre exchanges by letter.”

No one from the Scottish Parliament was available for official comment late yesterday, nor were enquiries acknowledged on exactly what the Committee had asked of the Lord President after their meeting last week.

You can read my earlier coverage of the campaign to bring McKenzie Friends to Scotland, here : McKenzie Friends for Scotland : The story so far

All written submissions for the McKenzie Friend petition at the Scottish Parliament can be read here : Written submissions for Petition 1247, McKenzie Friends for Scotland

Lord Hamilton - ‘Scots too ignorant to know what a McKenzie Friend is’ as Holyrood petition & consumer groups criticised by top judge

Scotland’s Lord President Lord Hamilton. The embarrassingly long one year debate on how to formally introduce McKenzie Friends (non-lawyer courtroom assistants) to Scotland’s courts took another turn today as it emerged, LORD HAMILTON, Scotland’s top judge has told the Scottish Parliament he does not believe in using the term “McKenzie Friend” in a Scottish court, alleging that unrepresented Scots court users are too ignorant of ‘legal language’ and the courts system they would have no idea what a McKenzie Friend actually is.

Lord Hamilton’s letter to Holyrood’s Petitions Committee (pdf), dated 22 April 2010, one day after the Committee had asked the Lord President for responses to points raised in last Tuesday’s Petitions Committee hearing, rounded on everyone in the McKenzie Friend debate, and went onto heavily criticise consumer organisations, law reform campaigners and even the petitioner, Mr Stewart MacKenzie for raising points of doubt over the Lord President’s somewhat overly protective plans announced in February, to introduce an Act of Sederunt to formally allow McKenzie Friends to operate in the Scottish courts.

Lord Hamilton is thought to have been angry his ‘evidence’ in written form to the Scottish parliament has been widely criticised & pulled apart for misrepresenting many aspects of the McKenzie Friends debate, which has led to criticisms of the Lord President during last week’s hearing of the Petitions Committee for being overly protective of the courts system. You can watch video coverage of last week’s Petitions Committee hearing on McKenzie Friends HERE and earlier coverage of the McKenzie Friend issue at InjusticeTV

Lord Hamilton – Scots wont know what a McKenzie Friend is. Lord Hamilton in a terse response to Holyrood’s Petitions Committee said : “Both Which and the petitioner have concerns about non-use of the expression “McKenzie Friend”. With due respect, it is the substance of the proposals which is important rather than the name used and the real question is whether they deliver the right result. It is my view that a colloquial expression such as “McKenzie Friend” is not appropriate for the Rules of Court. It is an example of the sort of “legal language” (as so described by Consumer Focus Scotland), inaccessible to the wider public, which the courts are often criticized for using. It has to be borne in mind that most unrepresented litigants are coming to the court system without previous experience of it: it is in my view to be doubted that they would know what a “McKenzie Friend” is; but they might well be able to guess what a “lay assistant” might be and be stimulated to make further enquiries.”

The increasingly bitter debate, marking the Scottish legal system’s miserable attempt to bring McKenzie Friends to Scotland’s courts compares negatively to the swift court judgement in the 1970 McKenzie v McKenzie court case in England, which established the right to use a McKenzie Friend court helper in English courts, a facility now used by unrepresented party litigants in many international jurisdictions.

What took an English court one judgement forty years ago to achieve is taking Scotland’s combined legal & political figures more than a year with no end in sight. The year long peculiarly Scottish version of introducing McKenzie Friends, has so far seen the involvement of no less than two Scottish Government Cabinet Ministers, Justice Secretary Kenny MacAskill and the Community Safety Minister Fergus Ewing, several meetings of the Scottish Parliament’s Petitions Committee dating back to April 2009, a November 2009 ruling in the Court of Session by judge Lord Woolman who allowed Scotland's first Civil Law McKenzie Friend, the involvement of Scotland’s two top judges, the Lord Justice Clerk Lord Gill - who supports the introduction of McKenzie Friends via his Civil Courts Review and the Lord President of the Courts Lord Hamilton who has claimed at various stages of the debate McKenzie Friend style ‘lay assistance’ has always existed in Scotland despite no record of it being able to be produced by the Scottish Courts Service, has left Scots in general, and many unrepresented party litigants no further forward in seeing a clear set of rules on how McKenzie Friends can be used in the Scottish Courts.

Law Society of Scotland oppose McKenzie Friends on grounds of lost business for solicitors. Also of note to the debate on McKenzie Friends, is the Law Society of Scotland's opposition to the entire concept of unrepresented party litigants having the facility of non-lawyer courtroom assistance. The Law Society and the Faculty of Advocates are apparently more worried McKenzie Friends & other access to justice reforms from Lord Gilll’s Civil Courts Review will impact on business for their members while losing the legal profession their long held control over who among us actually gets into court.

Lord Hamilton – relevant to know something about the McKenzie Friend. Addressing the issue of the ‘certificate’ which Lord Hamilton wants any potential McKenzie Friend to sign prior to their appearance in Court, a move criticised by consumer groups and also addressed by the HMCS (Her Majesty’s Court Service, England & Wales) as being informal rather than compulsory, the Lord President told the Scottish Parliament in his letter : “The purpose of asking for such information is simply to provide the judge with information which may be of assistance in considering the application, and in considering any application which might subsequently be made for the permission to be revoked. It is not envisaged that applications would often be opposed, or that applications would often be made for the permission to be revoked. In the event that such a question were to arise, however, it would be relevant to know something about the McKenzie Friend.”

Lord Hamilton continued : “The fact that someone is related to the applicant would be a factor favouring allowing him to act as a McKenzie Friend, as would the fact that he was a neighbour or a friend. But the absence of any relationship would not of course mean that the application would be refused. The fact that someone had experience which was relevant to his or her providing assistance in court (e.g. as a lawyer, a trade union official or a CAB worker) would also be taken into account, but would not be essential.”

“The provision of such information would also assist the court in protecting vulnerable members of the public from the possibility of lay people who do not have relevant experience but who enjoy participating in court proceedings holding themselves out as providers of legal services.”

Lord Hamilton went on to inform the Parliament the latest version of the guidance on McKenzie Friends for England & Wales advises that the proposed McKenzie Friend should furnish the Court with a short CV or other statement setting out relevant experience. He claimed the Scottish proposals seek only to achieve a similar result in a slightly different way, although as documents from the English court authorities confirm the CV aspect of the guidance is ‘not as compulsory’ as what is intended for implementation in Scotland.

The Lord President conceded some amendments to how the McKenzie Friend issue is handled in Scottish courts may be necessary. He commented : “In light of what is said by Consumer Focus Scotland, I can see that further steps may be appropriate to ensure that judges are approaching applications for McKenzie Friends in the right way. Ultimately, these may be matters which need to be resolved by decided cases and the establishment of a coherent body of law. In any event, I can assure the Committee that I would intend to keep the matter under review with a view to making any adjustments of the rules, or issuing any guidance, which seems necessary.”

Lord Hamilton indicated in his letter to the Petitions Committee, he could still deal with the matter by way of introducing McKenzie Friends to Scottish courts via his proposed Act of Sederunt, to be discussed at the Court of Session Rules Council meeting on May 10 2009, although noting Consumer Focus Scotland had suggested it would be preferable to proceed using primary legislation to set out the general principles surrounding the use of a McKenzie Friend and then to let the Rules of Court complete the detail. He asked the Petitions Committee if he should defer any further consideration of the matter on his part until progress became clear on the issue.

In a somewhat ambiguous conclusion, Lord Hamilton appeared to give preference to the idea of using the legislative process as indicated by a recent announcement from the Scottish Government of an amendment to Stage two of the Legal Services Bill, for the introduction of McKenzie Friends to Scottish courts.

Lord Hamilton – legislation may be needed on McKenzie Friends. Lord Hamilton concluded : “The evidence from Consumer Focus Scotland appears to suggest that it would be preferable to proceed in some respects by way of guidance rather than court rules. It notes that this is the situation in England and Wales. This is not entirely correct: in England and Wales, the guidance is descriptive of a long line of decided cases on the subject. In Scotland, no such long line of decided cases exists. In order to ensure that there is an absolutely sure foundation for McKenzie Friends in Scotland, it is in my view preferable to render those principles into legislative form.”

So there we have it, the Scottish Judiciary, the Scottish legal establishment, the Scottish Courts, the Scottish Government and the Scottish Parliament couldn’t manage in over a year what one London court managed in one judgement in a divorce action over forty years ago in 1970. If there is any indication our Scottish legal system needs much more than reforming .. probably a whole reboot, then this must be one of those perfect examples to show how far the rot goes, and what must be done to repair it.

McKenzie Friends - We Scots are allegedly too ignorant to know what they are, but we are not necessarily too ignorant to be forced to stump up tens of thousands of pounds to lawyers, advocates & legal teams in the Court of Session for stringing out even the most simplest of cases to years or even decades long appearances with no clear result for clients, other than huge fees for the legal profession. An unfair system of access to justice, if ever there was one. Shame on those who preserve it. They have no standards, no decency.

You can read my earlier coverage of the campaign to bring McKenzie Friends to Scotland, here : McKenzie Friends for Scotland : The story so far

All written submissions for the McKenzie Friend petition at the Scottish Parliament can be read here : Written submissions for Petition 1247, McKenzie Friends for Scotland