Scots judiciary warming to idea of friends in courtroom

Published on Sunday 13 June 2010 23:22

IT IS not at all unusual for members of the legal profession and the general public to discover they are divided by a common language. If proof was needed – and the single word "proof" itself could generate hours of mutual incomprehension – the wrangling for the last year or more over the recognition of McKenzie Friends in Scottish courts is a textbook case.

What is more unusual is the sense of genuine hurt and questioning of motives that has characterised the exchanges in particular between the Lord President and Stewart Mackenzie, who lit the touch paper with his petition to the public petitions committee of the Scottish Parliament in April 2009.

The petition called for the introduction of McKenzie Friends into the Scottish courts, on the basis that they have become acknowledged in England and other jurisdictions for several decades, as aids to the effectiveness of proceedings involving a party litigant.

The McKenzie Friend is someone who is not legally qualified, but who can assist and support an unrepresented party litigant in presenting his or her case in court. Judges in England have generally come to welcome them, particularly where one party is legally represented but the other party is not, usually because legal aid was refused.

At first, the Scottish judiciary, in the shape of Lord Hamilton, the Lord President, appeared to blank the proposal. Last November, he told the petitions committee that rules of procedure allowing for such "lay assistants" already existed, so there was no need to do anything.

However, in February 2010 he indicated a substantial change of position and undertook to introduce an Act of Sederunt. This defined what a lay assistant would be permitted to do and the procedure by which he or she would become recognised by the court.

In a further letter to the petitions committee in April 2010, Lord Hamilton responded to suspicions that the rules by which a prospective lay assistant would have to submit a form 12.A.A – listing his or her qualifications, experience and relationship to the litigant – were intended to discourage participation. He clarified that the presumption on the bench would be in favour of approving applications.

Stewart Mackenzie and his supporters in the legal consumer organisations and among MSPs were still perplexed at the Lord President's insistence on using the term "lay assistant". Lord Hamilton explained this was on the grounds of clarity and plain language, though this leaves Scotland refusing to use the name by which McKenzie Friends are known worldwide.

Nevertheless, the promised Act of Sederunt was duly published and takes effect tomorrow.

Its rules revealed that an application for recognition in court would be by enrolling a motion at a cost of 45, whereas no fee is charged in England.

Bill Aitken, convener of the Scottish Parliament justice committee, says: "I doubt if 45 will represent a serious impediment to anyone wishing to enlist the support of a lay assistant, but I agree it does set a different tone from what I understand prevails in England."

However, what caught the campaigners on the hop was the realisation, rather late in the day, that the act will only apply to the Court of Session and not yet to the sheriff courts, in which the vast majority of prospective cases calling out for a McKenzie Friend/lay assistant are likely to be heard.

They were referred to a paragraph in Lord Hamilton's February letter to the public petitions committee saying he had "made the Sheriff Court Rules Council aware" of the actions he had taken. The phrasing was rather curious, given that Lord Hamilton chairs the Sheriff Court Rules Council.

The draft minutes of its most recent meeting on 10 May indicate only that "Rules on this matter to be finalised and made in early course."

"Early" is another word that may have a meaning in legal circles that would differ from the expectations of the man on the Craigmillar omnibus.

The task has fallen to the working group led by Sheriff Craig Scott, with responsibility for addressing the Sheriff Court Rules Council's response to the Gill Review.

Stewart Mackenzie believes the public petitions committee missed the moment by not making direct contact with the Sheriff Court Rules Council on receipt of the Lord President's letter in February. The view from within the petitions committee is that, while it didn't take its eye off the ball, it will want to know when the Stewart Mackenzie petition returns to its September session what progress has been made by the Sheriff Court Rules Council.

Mr Mackenzie says: "I was very pleased Lord Hamilton acted so quickly since his letter in February, as far as the Court of Session is concerned. It was a big change for him. But the rules really should have been brought into force in sheriff courts at the same time as they are in the Court of Session." His hope is that as the whole issue was lifted out of the issues raised by the Gill Review for the Court of Session, so it can be for the sheriff courts.

However, even after the act comes into force, it seems it will be a long march for the lay assistants in Scotland before they achieve the level of acceptance for the contribution they can make in the interests of justice that McKenzie Friends have achieved in England.

Deborah Price, legal director of Which? in London, was a McKenzie Friend while a trainee.

"McKenzies fulfil an important role in all sorts of cases, from simple hand-holding in small claims courts, to keeping a case on track in the family courts, where emotions can run away with a litigant to the detriment of his or her argument," she says.

Organisations such as Families Need Fathers have built a solid reputation within the court system to the extent they now sit on the Family Court Rules Council. They train staff and volunteers to act as McKenzie Friends, and their house magazine is called "McKenzie" to reflect the importance of the contribution in court to its work.

Their northern regional officer, Emlyn Jones, wrote to the public petitions committee in April: "There is an acknowledgement by the English courts that under article 8 of the Human Rights Act, fathers have a right to family life so will apply for contact when denied even though they cannot afford a solicitor. Under article 8, they have a right to a fair hearing."

McKenzie Friends have been the route to "equality of arms".

The approach has also been adopted by the National Centre for Domestic Violence, which similarly trains staff and volunteers to act as McKenzie Friends in English courts.

The template, cited by the Scottish advocates of McKenzie Friends and acknowledged by the Lord President as forming substantially the basis for his act, is the guidance published by the president of the family division in England in 2008.

The president at the time was Sir Mark Potter, who retired earlier this year. Speaking to The Scotsman he says he has seen McKenzie Friends performing a useful role daily in helping litigants in person – and the judge on the bench – get through their case, but the extent of their participation is becoming an issue itself.

"In principle, courts regard McKenzie friends as useful and helpful, and most of them are," he says.

"The idea of a McKenzie Friend is to be commended particularly in the current climate, where legal aid is increasingly unavailable and litigants are being obliged to appear in person. I would say of the cases listed on any day in the Royal Courts of Justice, there will be a McKenzie Friend in at least one – and probably 50 or more in the county courts up and down the country.

"The difficulty that judges face and have become worried about, is that we're now getting a breed of professional McKenzie Friends who charge sometimes substantially for their services.

"But they are not subject to any disciplinary code, any regulation of fees, any obligation to provide indemnity to protect the litigant in person if they make a hash of it or are negligent. That's a public policy difficulty that is becoming more and more acute."

It is explicit in the Lord President's regime for "lay assistants" in Scotland that they will not be able to charge directly or indirectly for their services or recover any costs from the other side. But Sir Mark Potter says the lesson from England is that the "discretion" given to a judge to refuse to allow a lay assistant eventually withers away.

"Firstly, the burden is placed on the other side to find grounds to object, and the bar is very high," he says. "There are no fees involved in England and although the court should have written notice in advance if someone turns up on the day, he or she is unlikely to be turned away because the judge doesn't want the case to be prolonged even further by turning up in the appeal court."

Ms Price accepts that, in due course, some form of accreditation may be needed for as long as the demand keeps rising: "It isn't only cases where no legal aid is available, but often even if you have the money, there are no solicitors doing that sort of work," she says.

"We can only claim the courts are just when everybody who has a valid case gets a chance to argue it properly."