Who needs the final series of Lost when we have Lord Hamilton to keep us on the edge of our seats, not knowing what’s coming next?

First it was that McKenzie friends should sit behind and not beside the litigant in person…

In preparation for taking the short journey by ferry from Belfast to Stranraer to McKenzie friend, everyone in our office practised being ‘back seat drivers’ . If we had’ve continued with such legal athletics we would likely have ended up with neck strains, arms like Tyson and calf muscles like bison. Have you ever tried to lean forward holding 500 pages in a lever arch file? One of our guys suggested a fitness test should be compulsory if planning to work in Scotland. How we laughed!

Not content with the Herod-esque attempt to kill McKenzie friending in Scotland in its infancy, the legal elite in the person of Lord Hamilton decided that if they couldn’t stop McKenzie friending totally, they would discourage people from assisting personal litigants by making it law that McKenzie friends can’t receive payment for their services in Scotland.

Worryingly for those interested in true access to justice the restriction at 5 (iii) should mean that no-one can receive payment for McKenzie friending in Scotland…and I mean no-one. That would include employees of any of the many excellent Scottish groups that potentially provide services to litigants in person such as the CAB, as I fail to see how an employee of one of these organisations is exempt from 5 (iii)?

The no payment angle was part of Ian Hanger QC’s submission to the Committee, and I am sure the committee were delighted to see such a notable as the original McKenzie friend say ‘HE’S LAY – SO YOU CAN’T PAY!….

‘HURRAH!!’ must have come the paternal and protectionist noises from the massed ranks of the legal profession and their brother and sister judges. The beginning of the end for some of them had been postponed, and they had just been handed what they thought was the stake that would spear the evolutionary product of McKenzie friends -  the big bad LAY ADVOCATE – the previously unstoppable walking talking action man and woman with moving eyes and mouth.

If this ridiculous restriction on access to justice is allowed to stand in Scotland it will leave only the independently wealthy, retirees, dole-ites and students skiving off uni as potential McKenzie friends. Just as the establishment wants it – an uneducated or transient opposition, unlikely to ever get enough experience to have a strategic influence on the law. It will also mean that our trips to Stranraer will be for pleasure only.

A begrudging, bedraggled vested interest attempt at legal drafting? Prospect of being passed into law with 5 (iii) in its current form? In the negative integers I would say.

Perhaps Lord Hamilton might be assisted by what another extremely highly respected family judge (Mr Justice Munby) said at para. 54 of In the Matter of N (A Child) [2009] EWHC 2096 (Fam)

‘Dr Pelling may be unqualified but he is plainly highly knowledgeable and experienced in such matters and he is entitled to charge, if he can find clients willing to pay his fees, at an hourly rate which can hardly be said to be extravagant when contrasted with the fees one frequently finds being charged to privately paying clients in family cases.’

Following on from our post about where McKenzie friends should sit Peter Cherbi has just announced on his blog that for the first time since the seminal judgment in McKenzie-v-McKenzie in 1970, a McKenzie friend has been permitted to assist a litigant in person in a Scottish Court.  Bizarrely however Lord Woolman decreed that the McKenzie friend sit behind the litigant, rather than beside!!!

How embarrassing for the Scottish senior judiciary to fudge this issue, whether by design or otherwise. If by design we have a word for such conduct in Northern Ireland. The word is ‘thran‘!

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!