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McKenzie friends ‘Beside’ or ‘Behind’? It all depends if you’re Scottish or not!

Just been Tweeted about an update from  A Diary of Injustice in Scotland – by Peter Cherbi.

Peter’s most recent post seems to suggest that Scotland’s Chief Judge Lord Hamilton feels that McKenzie friends in Scotland (where allegedly they are most unwelcome by the judiciary) would cause some sort of brevity meltdown in proceedings, as those dastardly McKenzie friends sit BEHIND  a personal litigant, and not BESIDE him or her.

If it’s worth anything I can add my own experience to the debate by saying that I HAVE sat behind a litigant in person to assist him, but this is far from the norm. It has only happened once, due to limited space that would not take the litigant in person, myself, a second McKenze friend, Bundles A to M, a copy of Hershman & McFarlane and our other accoutrements.  Incidentally the judge who allowed the two McKenzie friends was no other than Sir Declan Morgan, then a High Court Judge working at the Family Division but now the Lord Chief Justice for Northern Ireland! Maybe these two jurists should talk?

In all honesty I don’t think that the debate in Scotland is anything to do with who sits where. The real issue isn’t even about McKenzie friends, its what McKenzie friends inevitably become…the real fear is of McKenzie friends routinely being granted a discretionary Right of Audience and thus building up their experience and skill in advocacy and litigation.

Amateurs can and do beat professionals in sport, but amateurs are usually allowed some sort of levelling-up assistance to make the game fair. With a litigant in person however there is no consistent application of the principal of Equality of Arms, and I have been involved with cases where one party had a QC, junior barrister, and instructing solicitor but the poor litigant in person was expected to overcome their dyslexia, poor speech and lack of education and advocate for themselves. Protectionism should never be allowed to prosper over Human Rights and Natural Justice.

True equality of arms is clearly against the wishes and economic motives of the legal professions in all jurisdictions, and the major legal professions would likely collapse if there was no money in practising law. It is that nightmare scenario that has lawyers and judges running around panicking about the rise of Lawyer-Lite uber McKenzies like myself.

It’s a bit it like house builders at the advent and rise of self build. Only difference here is that the builders could only lobby to make it harder for self builders, they didn’t have the power to legislate or incrementally change the law. There is no such restriction for lawyers and their brother judges as judicial activism is on a par with legislation in this area, so judges can stop personal litigants getting the best lay assistance available if they choose to, and a change in ruling party is unlikely to make it better again!

{ 2 comments… add one }
  • Peter Cherbi November 10, 2009, 10:14 pm

    How right you are …

    The debate in Scotland about McKenzie Friends has been turned by the legal establishment into a debate on who controls access to justice, and as you rightly put it, the fear that McKenzie Friends will build up experience, regularly appearing in cases to the point of gaining a right of audience, the thought of which seems to drive the Scottish legal establishment wild with jealousy.

    Sadly, trying to bring Scotland’s ‘control freak protectionist’ legal system into line with the rest of the UK in terms of access to justice, McKenzie Friends, or increased rights of audience seems to be blocked at every turn … the battle however, goes on.