Wednesday, July 11, 2012

Two Days in the City : Rights of Audience for McKenzie Friends in Scots courts could have made the difference in Tods Murray v Arakin

Andrew McNamara’s 16 year battle against a law firm may have been shortened considerably by talking McKenzie Friend reform. A SIXTEEN YEAR BATTLE in Scotland’s courts between a struggling pensioner, Andrew McNamara and the might & influence of Edinburgh law firm Tods Murray, may well have been considerably shortened if reforms implemented only a few days ago in Scotland’s courts, granting McKenzie Friends a right of audience had come much earlier, reports Catherine Simpson in the Herald newspaper. While court users in England & Wales have been able to call upon the services of McKenzie Friends, Scotland took FORTY YEARS to allow McKenzie Friends to appear in the Court of Session, many contend due to resistance from the legal profession & worries clients may chose to litigate themselves instead of hiring expensive legal teams.

An earlier report on the Tods Murray v Arakin case can be read HERE with coverage of the appeal, recently heard by the court HERE and more on the history of Arakin Ltd’s dispute with Tods Murray can be found at a website on the case, here : Tods Murray v Arakin

Legal end to 'injustice' for sole litigants

Ruling benefits those without representation

By Catherine Simpson

NEW rules which came into force this week will improve the access to justice for people forced to represent themselves in Scotland’s civil courts.

Litigants who either can’t afford or can’t secure professional representation are often hugely disadvantaged as they invariably face a team of lawyers on the other side.

But from this week in Scottish courts, people helping them with their cases, who are known as McKenzie friends, will be granted the right to speak for them.

As Lord Justice Clerk, Scotland’s second most senior judge Lord Gill published in 2009 the results of a two-year review he had chaired into the civil courts in Scotland which recommended rights of audience should be extended to McKenzie friends.

The Scottish Parliament enabled legislation to that effect and it became law on Monday, potentially ending what many campaigners have described as an injustice in the Scottish courts.

But for one family, now awaiting the final judgment in a 16-year legal battle against their former lawyers, Tods Murray, the change came an agonising five days too late.

At the age of 70, partially-sighted and partially deaf Andy McNamara, owner of contracting firm Arakin Ltd, was incredulous when his wife Janette received a letter from Lord Gill’s office on Tuesday morning last week.

Mrs McNamara, 69, had written to the new Lord President reminding him of the recommendations he made three years ago and urging him to enact them. She said it would help her husband achieve a fairer hearing in his appeal against a decision that Arakin had to pay Tods Murray more than £86,000 in unpaid fees going back to the 1990s.

Mr McNamara has been assisted through numerous court battles against Tods Murray by his daughter Carol who knows the case as well as he does but whose role has been restricted to handing her father the correct papers and advising him before he speaks.

After the two-day hearing, which ended last Thursday, Ms McNamara said: “It was hard to believe someone wasn’t having a laugh at our expense. We’ve been asking for this for some time, have written to the Lord President and to all MSPs and then we learn the day before we’re in court the change is coming, which is great, but five days too late to be any use to us.

“We told the Lord President and MSPs we believed being forced to go it alone breached my father’s human rights and that is an avenue we will explore further.”

Mr McNamara spent much of the two-day appeal hearing on his feet, struggling to read documents with a magnifying glass and often having to ask the judges _ Lords Menzies and Bracadale and Lady Cosgrove _ to repeat questions.

At one stage, he asked that his daughter be allowed to speak for him. The judges had been given copies of the letter from Lord Gill’s office, confirming the change in law from today, but after a brief conference they told him they could not grant his daughter rights of audience in advance of the change.

The outstanding litigation between Mr McNamara and Tods Murray saw a rigorous examination of Tods Murray’s fees for professional services to Arakin in the 1990s and the sums paid to account by Arakin.

Mr McNamara told the court that the paperwork showed clearly that Arakin had paid some £70,000 more than the sums invoiced for when Tods Murray sued for payment.

But Alastair Duncan, for Tods Murray, who was supported by junior counsel and a solicitor, argued Lord Woolman had been right to find against Arakin in February when he ordered the firm to pay its former lawyers £86,376.

The judges will present a written judgment at a later date.


Anonymous said...

But still no movement on being able to pay McKenzie Friends expenses - far less a small fee - so some way to go yet.

Anonymous said...

This is the vengeful and vindictive system we have in Scotland?

Party Litigants are treated as second class citizens. A kind of Sottish legal apartheid?

The McKenzie Friend's facility was deliberately held back, so that it could not be utilised by these victims of crooked Scottish lawyers?

Anonymous said...

The McKenzie friend development is a good one and must benefit people because I would never trust a lawyer anyway.

Anonymous said...

Legal apartheid, spot on. In South Africa we have Ethnocracy, free government and legal rights for whites but not for black people. This is the same, total rights for lawyers, discrimination and predjudice towards clients.

Anonymous said...

For 40 years have the Scottish lawyers been living in fear of losing their monopoly of legal services in Scotland?

Is the real reason they have unlawfully blocked 'McKenzie Friends' from our courts because they are worried that the Public will just veto using a Scottish lawyer ever again?

This may also explain how Scottish lawyers are seemingly being allowed to extort as much money from the Public coffers before the inevitable route and branch reform which is inevitable after the looming backlash?