MacAskill fails to shine at Holyrood on McKenzie Friend questions

Justice Secretary Kenny MacAskill came up with anything but a straight answer to questions posed by Margo MacDonald MSP at the Scottish Parliament on the subject of enacting McKenzie Friends in the Scottish courts.

While England & Wales has had McKenzie Friends for some 39 years, Scotland’s Justice Secretary can only manage further delays, however, we might be saved by Lord Gill in his forthcoming review of the Civil justice system, where it is rumoured he supports the introduction of McKenzie Friends to Scotland. (Not if the Law Society have their way – Ed)

Kenny MacAskill faces questions over the 39 year lack of McKenzie Friends in Scottish Courts.

McKenzie Friends

5. Margo MacDonald (Lothians) (Ind): To ask the Scottish Executive whether it will introduce the practice of allowing a McKenzie's friend into law courts. (S3O-6781)

The Cabinet Secretary for Justice (Kenny MacAskill): The term "McKenzie friend" refers to the practice in English and Welsh courts in which parties are given assistance from someone other than a lawyer in presenting their case in court. At present, a party may be represented by a friend, relative or lay representative, such as a citizens advice bureau representative, in the small claims and summary cause sheriff courts. That covers actions up to a value of £5,000.

The right hon Lord Gill's civil courts review is considering the issue of McKenzie friends. I look forward to receiving his report, which is expected in June, and I will carefully consider all his recommendations about McKenzie friends and about wider issues concerning those who represent themselves in court. Those wider issues include the funding of court actions, improved court procedure and other methods of dispute resolution.

Margo MacDonald: I thank the cabinet secretary for his reply and for his attention to Lord Gill's upcoming report. Before its publication, he will see the petition on the matter that was discussed in committee just two days ago.

I draw to the cabinet secretary's attention that the McKenzie friend system, which we advocate, does not allow anyone to advocate on behalf of someone in court; the McKenzie friend is simply there to advise or support a person who might be without legal representation. The cabinet secretary must agree with me that that would only enhance the procedure in Scottish courts.

Kenny MacAskill: Anything that makes people more comfortable in a court environment is to be welcomed. There must be majesty of the court and the experience of court can be traumatic for whatever reason, so people's ability to have support is important.

The question of who has formal representation rights is of greater complexity and must be considered in the round. We have addressed the issue at small claims and summary levels, and there can be representation in some debt cases in ordinary actions. We have broadened the approach to give the Association of Commercial Attorneys various powers, which have been signed off by the Lord President. One thing that differentiates Scotland from England is that there is wider access to legal aid in Scotland than there is south of the border, which means that there is greater opportunity for representation.

Lord Gill must consider the matter because it is not simply about comfort and people's ability to be assisted in court, whether by a lay or legal representative, but about whether court is the appropriate forum in which to deal with a matter. That is why the issue should be considered in its totality. I look forward to Lord Gill's review, and I will be more than happy to discuss the matter thereafter.

Scottish Civil Courts 'unfit for purpose' as hopes for review to increase competitiveness

The Scottish Civil Courts Review announced earlier this year is long overdue as many accept .. but will it do any good, or is it just another talking shop for the legal profession ?

The Scotsman reports :

Scottish Civil Court Review must help us to compete with English services

KENNY CUMMING

"FITNESS for purpose" has become the buzz phrase in recnt times for testing whether our institutions are delivering the services the public expect.

"Are the Scottish civil courts fit for purpose?" is essentially the question now being posed in the consultation document published as the first stage of the Scottish Civil Court Review, announced by the then Scottish Executive earlier this year.

This review of the structure, procedure and working methods of the civil courts in Scotland is being undertaken by a project board chaired by Lord Gill, one of Scotland's most senior judges, and made up of members of the judiciary, assisted by a policy group with a more diverse membership, including solicitors, advocates, and representatives of organisations such as the Scottish Mediation Network and the Scottish Consumer Council. The project board will report with recommendations within two years.

The Executive stated its objectives in instructing the review was to ensure cases are dealt with in ways "proportionate to their monetary value and the importance and complexity of the issues raised" and offer value for money by "making sure civil justice services are efficient, meet reasonable public expectations, and promote early resolution of disputes".

Many would say this review is well overdue. The current civil court system has operated in much the same way for centuries. While recent attempts at reform have been welcomed, including the introduction of specialist commercial courts in the Court of Session and, more recently, in certain Sheriff Courts, many feel those reforms have simply tinkered at the edges.

Would-be users of these commercial courts are letting their feet do the talking. In recent years, there has been a dramatic decrease in the number of actions being raised in the Court of Session Commercial Court: 50 per cent less in 2005 than in 2004 and 50 per cent less in 2006 than in 2005. Hardly a vote of confidence in a modernised system introduced in 1994.

These statistics do not mean the disputes that the Commercial Court used to deal with are not arising. They is evidence that businesses are choosing to resolve disputes in other ways.

There is undoubtedly a growing preference on the part of many commercial organisations to litigate south of the Border whenever possible. Businesses with the choice are attracted by a more streamlined court system that offers specialist judges and a better chance of recovering the real cost of litigation if the client is successful.

The use of mediation is strongly encouraged. Parties can have awards of costs made against them if they unreasonably refuse to mediate. Rightly or wrongly, the English courts are generally perceived to be more pro-active, modern and user-friendly, and to be taking a pragmatic approach to servicing the needs of commercial users.

It is necessary to halt this trend, by learning whatever lessons can be learned from England or anywhere else and by embracing the best of the new ideas that this review will hopefully generate, and to prove to the business community that Scotland can provide a court system able to deliver efficient, effective resolution of its disputes in a reasonable time and at reasonable cost.

While any radical reform will naturally take time, let's hope that it won't be too long before businesses and their lawyers will agree that the Scottish civil courts are fit for purpose.

• Kenny Cumming is the head of litigation at Shepherd+ Wedderburn.