Little help from my friends

A PETITION to the Scottish Parliament calling for the introduction of McKenzie Friends into Scottish courts may be pushing at a door that's already swinging open.

A McKenzie Friend is a non-legally-qualified supporter, who can sit with someone representing themselves in a civil case and provide assistance in a court hearing.

The McKenzie Friend cannot address the court unless invited to by the judge, but can take notes, help with case papers, quietly give advice on points of law or procedure; and prompt the litigant with questions to put to witnesses.

They have been a fixture on the civil litigation landscape in England and Wales for nearly 40 years and have spread to jurisdictions around the world, but curiously never to Scotland.

The petition, to be discussed tomorrow, has been presented by Stewart McKenzie (no relation) who lives near Perth. He says: "England's had it for 38 years so why don't we?"

Mr McKenzie says he heard about McKenzie Friends a few years ago and couldn't find anybody to explain why they aren't allowed in Scotland: "I think it's shocking that if you are forced to present your case on your own because you can't afford a lawyer and don't get legal aid, you aren't allowed any help in court. This petition isn't about any individual case and isn't about any case I'm involved in. It's for the people of Scotland."

He observes that when Heather Mills sacked her legal team in the divorce hearing with Sir Paul McCartney, she had McKenzie Friends to help her – not one, but three, including her sister.

The term comes from an otherwise unremarkable London divorce case, McKenzie v McKenzie, in 1971. On the night before the hearing, the husband discovered he was not going to get legal aid to be represented by a solicitor. His wife did have legal aid. Mr McKenzie was determined to represent himself but was not on top of the case.

He had been in contact with a firm of solicitors, Jeffrey Gordon & Co who had taken on a recently-qualified Australian barrister, Ian Hanger, on a gap year. He was sent to court to see what he could do to help Mr McKenzie.

Speaking from Brisbane, Mr Hanger, now one of Australia's most-respected QCs, recalls the events that led to his place in legal folklore with some amusement.

"I sat beside Mr McKenzie and there was a lot of whispered consultation between us," he says. "The judge was getting increasingly irritated. After lunch, the judge asked me who I was and what I was doing, and then announced that he'd had enough and sent me to the public gallery. He said I could not speak to Mr McKenzie except during adjournments."

That rendered the exercise futile and Hanger did not return for the second day. In due course the judge reached his conclusions. Shortly afterwards, Hanger and his friend from Australia, Richard Chesterman, now an Appeal Court Judge in Queensland, planned to set off for a car tour of Scotland. On the day before they left, Jeffrey Gordon sent a copy of the McKenzie v McKenzie judgment to Hanger with a request that he advise on prospects of appeal. There did not appear to be any.

Rather facetiously, Hanger wrote on the papers: "The judge was wrong to exclude me."

That became the ground of appeal. The appeal was upheld and McKenzie Friends haven't looked back.

Steve Hynes, director of the Legal Action Group, says: "McKenzie Friends are very common in England and Wales. As legal aid has receded for an increasing proportion of the population, the vacuum has been filled to a considerable extent by McKenzie Friends. I know a large proportion of debt cases these days will involve McKenzie Friends.

"There's no real point in instructing a qualified lawyer when there are no legal points at issue. The hearing will be about rescheduling debt and it is better to have someone by your side who knows about debt and accounting than law."

Participation of a McKenzie Friend is still at the discretion of the judge in every case, but their position has been underpinned by the incorporation of the European Convention of Human Rights into law in England and Wales.

The president of the Family Law Division in England circulated a note to his judges last year spelling out, in the light of the growth of 'litigants in person' in all levels of family court, "the attendance of a McKenzie friend will often be of advantage to the court in ensuring the litigant in person receives a fair hearing ... When considering any request for the assistance of a MF, the Human Rights Act ... is engaged; the court should consider the matter judicially, allowing the litigant reasonable opportunity to develop the argument in favour of the request ... In the event of objection, it is for the objecting party to rebut the presumption in favour of allowing the MF to attend."

Stewart McKenzie's petition has drawn support from Which? magazine, which has lodged a submission arguing that "the right to use a McKenzie Friend would be highly beneficial and could only result in a fairer hearing and outcome for members of the public".

Lord Gill has been considering a major overhaul of Scottish civil justice and his office has been in touch with the Petitions Committee advising that a question about McKenzie Friends was included in its consultation document of November 2007 and the matter will be addressed in his final report that he hopes to submit to Ministers by the end of next month.

It is difficult to imagine he will argue against the concept.

In the meantime, Ian Hanger QC, the legal prototype, says: "If the Petitions Committee will fly me over to Edinburgh I would love to address them on the virtues of the McKenzie Friend."