Lord Woolman granted Scotland’s first Civil Law McKenzie Friend request. THE MCKENZIE FRIEND, long kept out of Scotland’s courts by the legal profession & Scotland’s legal establishment, has finally broke through the legal fraternity’s forty year embargo against party litigants requesting & receiving non-lawyer supportive assistance in Scotland’s civil courts, with a decision by Lord Woolman in the case of Martin Wilson v North Lanarkshire Council & Others, heard in mid-November 2009, granting the first ever use of a McKenzie Friend in a Scottish civil court.
Peter Cherbi’s Diary of Injustice Law blog broke story on Scotland’s first ever civil law McKenzie Friend. After reporting on the lack of a McKenzie Friend in Scottish Courts for nearly a year, well known law reform campaigner Peter Cherbi EXCLUSIVELY REPORTED Lord Woolman’s November ruling, which now allows all Scots party litigants the right of a McKenzie Friend, writing : “FORTY YEARS after McKenzie Friends were first introduced to UK courts as a result of the 1970 McKenzie v McKenzie decision which set a legal precedent for court users in England & Wales to request and receive the invaluable assistance of a McKenzie Friend, Scotland’s Court of Session has finally, albeit grudgingly fallen into line with the rest of the country and many international jurisdictions by granting what many say is the first successful request for a McKenzie Friend to appear in Scotland's civil courts.”
Peter went onto report : “The unexpected turn of events in the Court of Session last Tuesday, 17th November 2009 saw the sitting judge, Lord Woolman allow the attendance of Scotland’s first ever McKenzie Friend in a long running civil damages action which named Motherwell College, North Lanarkshire Council & Edinburgh Law firm Simpson & Marwick as defenders. The case, a medical injury claim recently heard 'potentially explosive allegations' against the College from the witness box.”
A spokeswoman for the Scottish Courts Service confirmed the first use of a McKenzie Friend in Scotland, issuing the following brief statement : "I confirm [the party litigant] was allowed to be assisted in the manner associated with the term “McKenzie Friend”. [The litigant's] supporter was advised by the Court as to the nature of his role and is seated behind [the litigant] in court in the place where an instructing agent (solicitor) would sit.”
Lord Gill recommended McKenzie Friends be introduced in his Civil Courts Review. In the recent Civil Courts Review, conducted by Scotland’s Lord Justice Clerk, Lord Brian Gill recommended that McKenzie Friends should be introduced in Scotland, not only being allowed to sit beside a litigant but also to be granted a right of audience in some circumstances, to speak for litigants. However, Lord Gill’s detailed recommendations on the introduction & application of McKenzie Friends in Scotland’s courts conflicts severely with claims made by the Lord President to Holyrood’s Petitions Committee, where Lord Hamilton claimed that such assistance as provided by McKenzie Friends had always existed in Scotland, when in fact, no recorded use of McKenzie Friends in Scottish Civil Courts has taken place until now, this now confirmed by the Scottish Courts Service itself.
The idea of bringing McKenzie Friends to Scotland’s civil courts arose from a Petition filed at the Parliament last year, reported HERE. Mr Cherbi, speaking to Scottish Law Reporter said he was delighted to see the Courts effectively get the jump on the Petitions Committee, after the Law Society had rigorously campaigned to have his own Petition PE1033 dumped, due to its calls for an investigation into & resolution of past cases of regulatory abuse committed by the Law Society of Scotland.
Mr Cherbi said : “At least in this case, it proves that sometimes, the legal establishment’s powers of controlling the public’s access to justice, can be circumvented with a lot of publicity, a good campaign, a litigant whose efforts were instrumental in the cause, a good petition with some backing and good support from all around the world.”
A Scottish Courts official described Mr Cherbi’s reporting on the McKenzie Friends issue as “a thorn in the flesh of the legal establishment, who proved to be the tipping point on the McKenzie Friend discussion.”
The official continued : “Unfortunately Peter Cherbi’s constant reporting on the McKenzie Friend debate at Parliament brought considerable pressure on the Courts Service to act, and accordingly McKenzie Friends have now been allowed.”
Scotland’s newspapers took awhile to catch onto the story, with the Scotsman reporting (in print, not sadly available online) on how badly Scotland’s legal establishment have handled the McKenzie Friend issue here :
Scotsman 30 November 2009
There seems to be confusion all round on 'McKenzie Friends' - proposed helpers in the courts for those without any representation - writes John Forsyth.
OF ALL the recommendations in Lord Gill's Civil justice Review, the suggestion that McKenzie Friends should be introduced into Scotland seemed among the easiest to achieve and unexceptional.
What could be more straightforward than allowing a party litigant in a civil case to bring a friend to sit beside him or her and provide assistance in court ? This "McKenzie Friend" should 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.
Instead the McKenzie Friend discussion has recently taken on a Lewis Carroll air, where nothing is quite as it seems in a world of parallel conversations.
Court officials tell callers the Scots law knows no McKenzie Friends, while a Court of Session judge has just allowed one: The Lord President has written to the Scottish Parliament asserting McKenzie Friends have always been allowed in the Scottish Courts though no-one can find a trace of any: the Secretary for Justice seems minded to embrace McKenzie Friends while his civil servants say they would rather not use the term at all if possible.
In England and Wales, the jurisdiction gave the role its name 40 years ago. The origin is in a 1971 English divorce case, McKenzie v McKenzie. Mr McKenzie discovered on the night before the divorce hearing that he was not going to get legal aid to be represented by a solicitor. Mrs McKenzie was. Mr McKenzie was assisted on the day by a young Australian barrister, Ian Hanger, now one of Australia's most celebrated QCs.
The judge didn't like this and sent Hanger to the public gallery. When the judgment was given Mr McKenzie appealed on the grounds he had been deprived of support in court. The appeal was upheld and McKenzie Friends became an accepted courtroom feature.
In England and Wales now, with added underpinnings from the European Convention of Human Rights, the instruction to judges is that while the final decision rests with them on whether to allow a McKenzie Friend, the presumption will be in favour.
It was the wish to make something possible in Scotland that has become normal in England and Wales, that prompted Stewart Mackenzie (no relation) to lodge a petition with the Scottish parliament urging the introduction of McKenzie Friends into Scotland. The petitions committee advised holding fire until Lord Gill had completed his Civil Justice Review and formulated his recommendations.
Lord Gill did endorse the contribution that could be made by McKenzie Friends and even considered the benefits of "McKenzie Friends Plus" in which in certain circumstances they could be allowed to address the court.
The 2 recommendation was clear that this did not imply that the McKenzie Friend was providing representation but where it might help expedite matters he or she could be invited by the judge to speak on the party litigant’s behalf.
While there has as yet been no formal response from the Lord President to the Gill Review, Lord Hamilton wrote to the petitions committee on 3 November stating "... in its original sense it referred to an individual assisting a party litigant by sitting behind him or her in court and assisting that litigant ...". He attributed that description to Chapter 11, para. 42 of the Civil Justice Review.
The phrase "sitting behind him or her" does not appear in that paragraph or in any of the sources referred to in the appendices or anywhere in the thinking of the Civil Justice Review.
The introduction of the phrase allowed Lord Hamilton to continue that "... it is the existing practice of the court to permit it; there is no need for its introduction ...".
The letter stunned everyone in the debate, including Stewart Mackenzie. "I can't find anyone who has ever heard of a McKenzie Friends being allowed in any court in Scotland."
He rang the Court of Session to check and was advised, "McKenzie Friends are an English idea. We don't have them here."
However we now appear to have had one. Almost. In a long running personal injury case, Wilson v North Lanarkshire Council and others, the party litigant, Martin Wilson, asked the court to permit him a McKenzie Friend at a hearing on 17 November. He had had previous similar requests turned down.
This time Lord Woolman allowed the request although the Scottish Courts Service spokeswoman issued clarification that "...[the party litigant was allowed to be assisted in the manner associated with the term 'McKenzie Friend'. [The litigant's] supporter was advised by the court as to the nature of his role and is seated behind [the litigant] in court in the place where an instructing agent (solicitor) would sit."
"The point is," says Stewart Mackenzie, "if the supporter is behind you he's not going to be much help, he'll just annoy the judge and he's not a McKenzie Friend."
Other supporters of McKenzie Friends were astonished at the Lord President's letter. Julia Clarke of Which? rang round the sheriff courts in Edinburgh, Glasgow, Aberdeen and Dundee for clarification. "Edinburgh, Aberdeen and Glasgow seemed to think a McKenzie Friend might be possible but the other side might object, but Dundee said it wasn't possible."
Independent MSP Margo MacDonald is a supporter of McKenzie Friends and recently discussed the issue with Kenny MacAskill. "He seems minded to accept the idea as it works in England but his civil servants are clearly uncomfortable when the senior judges are taking such different views."
A senior member of the Faculty of Advocates is blunter: "This is like Soviet revisionism. Now they are turning round to say, 'We've always had them so don't worry. Everything is fine.' But we don't have them or anything like them. It doesn't need Holyrood legislation. McKenzie Friends could be in place in a fortnight with a two section Act of Sederunt [the procedure by which the Court of Session regulates its own proceedings]'"
In the meantime, although his stated position is that we don't need to introduce McKenzie Friends by any name because we already have them, the Lord President has appointed Lord Reed to the task of improving Court of Session efficiency with addressing the issue of McKenzie Friends spelled out in his remit. Curiouser and curiouser.