Reaction to Review

Not much I can write about Lord Gill's Civil Law Review Report yesterday that has not be written elsewhere but I was relieved to see that the recommendations to introduce McKenzie Friends include a provision that, unlike England & Wales, the McKenzie Friends are not to be entitled to remuneration.

THE most far-reaching reform of Scotland's civil justice system in nearly two centuries has been proposed as part of a landmark review of the country's court system.

Full Article Source The Scotsman

Justice Secretary Kenny MacAskill said: "A strong and independent legal profession is part of the institutional framework of a modern democracy.

"The legal profession contributes an estimated £1bn in turnover to the Scottish economy annually. This new legislation will help it grow and compete in the UK and internationally."

The new business structures have been branded "Tesco law" in England but Mr MacAskill denies this will be the case in Scotland.

Mike Dailly, principal solicitor at the Govan Law Centre, said: "This Bill seeks to commodify access to justice in Scotland, and in so doing strikes at the heart of justice, the rule of law and the principles of a fair and democratic society."

Full Article Source The Herald

Ian Smart, President of the Law Society, said: “The Society has been active in driving the debate on alternative business structures (ABSs) and I am very pleased that the Legal Services (Scotland) Bill has been introduced into Parliament.

“The Society believes that Scotland’s legal profession should be able to adapt to best meet the needs of modern society and a global economy. Scots lawyers are well respected around the world and we want to ensure that our members have access to the opportunities that ABSs could present to adopt new practices, to deliver the services their clients expect and develop their businesses in Scotland, as well as elsewhere in the UK and overseas.

 "However it will be vitally important that the Bill ensures the independence of the legal profession, promotes access to justice and maintains robust consumer protections and high standards among those delivering legal services. Effective regulation will be key to any plans for change.”

News Release Source Law Society of Scotland

Scotland’s foremost consumer organisation has welcomed the publication of the Legal Services (Scotland) Bill today, Thursday 1 October, as a step forward in widening choice for users of legal services.

Sarah O’Neill, Head of Policy and Solicitor at Consumer Focus Scotland, said: “We have long campaigned for a more open market in legal services in Scotland and the creation of new ways of delivering them. The Legal Services Bill paves the way to open up competition in the market and widen choice for users of legal services.”

Press Release Source Consumer Focus

FORTY YEARS after McKenzie Friends were first introduced in England & Wales, the long awaited Civil Courts Review, undertaken by the Lord Justice Clerk, Lord Gill, has finally ended the decades long discrimination against Scottish court users, by recommending the introduction of McKenzie Friends to Scotland as well as a whole range of much needed improvements for Scots access to justice, including the introduction of simplified court procedures, more advice on legal rights, increased use of mediation, and finally and end to the infamous exclusion of Class Action litigation in Scotland’s antiquated civil courts system.

Full Post Source A Diary of Injustice


See also Jonathan Mitchell QC and The Journal

Read more...

Civil Courts Review

The Report of the Scottish Civil Courts Review was launched this morning. The review began its work on 2 April 2007 to report on the provision of civil justice by the courts in Scotland, including their structure, jurisdiction, procedures and working methods, having particular regard to;

• the cost of litigation to parties and to the public purse

• the role of mediation and other methods of dispute resolution in relation to court process

• the development of modern methods of communication and case management; and

• the issue of specialisation of courts or procedures, including the relationship between the civil and criminal courts


Picking up on some points from the synopsis that may have some impact on family law;

Key Themes

• The need for a greater degree of judicial specialisation.  Practitioners and 
court users were strongly in favour of a greater degree of specialisation in the sheriff court,principally in family law, commercial law, personal injury, consumer and housing cases.  The current system makes specialisation and judicial continuity difficult to achieve.  

• Party litigants and a new forum or method for dealing with lower value 
cases.  For litigants who do not have legal representation, even those court 
procedures designed with them in mind may be inaccessible.  Respondents 
also noted that party litigants may cause unnecessary expense and delay 
through  unfamiliarity  with  procedures  or  disruptive  behaviour  and  that 
firmer  measures  are  sometimes  required  to  deal  with  those  who  pursue 
claims without merit or behave unreasonably.  
 
• Problems relating to the cost and funding of litigation.  Respondents drew 
attention  to  the  cost  of  litigation  and  observed  that  only  those  with 
considerable wealth or who are eligible for legal aid can afford to litigate.  
There were concerns about the shortfall between what clients have to pay 
their legal advisers and what they can recover in expenses from the other 
party,  and  also  about  the  taxation  of  judicial  accounts. 
 
Recommendations

Structure of civil court system
• A system should be introduced whereby a number of sheriffs in each sheriffdom should be are designated as specialists in particular areas of practice, including solmen crime, general civil, personal injury, family and commercial.

A new case management model
• [New] District judges new will have jurisdiction to hear housing actions, actions for payment of £5,000 or less, and referrals and appeals from children’s hearings, and concurrent jurisdiction with sheriffs in family actions.

•In the sheriff court actions will be transferred to a court in which a sheriff with the relevant specialism is resident. Procedural business will be conducted by email, telephone, video conferencing or in writing.

Mediation and other forms of dispute resolution
• The Report recognises the value of Alternative Dispute Resolution ....

Access to justice for party litigants
•There are recommendations for the promotion of public legal education , improved online provision of information for members of the
public the development of in‐court advice services nd the rights of lay representatives (or ‘McKenzie friends’) of party litigants

Civil Courts Review Source Scottish Courts

See also Scottish Parliament Information Centre research briefing.

Read more...

Book & Blawg

For anyone representing themselves in England & Wales the book Do Your Own Divorce by John Bolch of Family Lore is now in print. As part of the Insite Law Magazine free online resources project, the first chapter An Introduction to Family Law has now gone up.

Meanwhile as Scottish Justice Minister, Kenny MacAskill, is facing a little bother with the Americans over his decision to free the Lockerbie bomber Lucy Reed of Pink Tape is hosting transatlantic Blawg Review #226.

Read more...

McKenzie Friend Petition: Recent Submissions

The Scottish Parliament's Petition Committee has recently received submissions for Petition 1247 from Consumer Focus Scotland, the Civil Justice Committee of the Law Society of Scotland, the Faculty of Advocates and Ian Hanger QC (the original McKenzie Friend) for Petition 1247. Petition 1247, coincidentally by Stewart Mackenzie,   calls for the introduction of a McKenzie Friend facility in the Scottish Courts. A McKenzie Friend being someone in England & Wales (and some other jurisdictions) who provides a litigant in person with support, covering tasks such as taking notes, providing moral support and giving them advice as to how to pursue the case. This can include giving advice in court, for example in terms of questions to ask or procedures to be followed.

The Civil Justice Committee of the Law Society of Scotland said it does not see a 'strong driving requirement' for the introduction of a Mackenzie friend facility in the Scottish courts as the current system allows a judge to consider whether or not it is appropriate for a litigant to have the assistance of a lay representative on a case by case basis.

Ian Hanger QC, writes the Australian experience has been that it has worked successfully and urges the Scottish Parliament to permit the appearance of the McKenzie Friend. He also states that McKenzie Friends should not be entitled to charge any fee for services and to do so, in Australia, would be breaching the Legal Services Acts. This certainly is not the case in England & Wales where some McKenzie Friends do charge a fee.

Read more...

Holidays & Fairs

Due to holidays, weddings, BBQs, Festivals etc and a get fit campaign I have neglected my blog and emails for the last 6 weeks or so. Sorry, it's a bit late now for this year but Nick Woodall of the Centre For Separated Families sent me a link to a mailing offering separated parents tips on coping with the summer holidays. It's worth a read and bearing in mind for the next school holiday.

Also Suzy Miller of the Starting Over Show has left a comment on this post and the next Starting Over Show which focuses on starting over and rebuilding healthy lives after divorce will be in London on 7 March and Brighton 28 March 2010. This will provide an opportunity to get free legal, financial and life coaching advice.

Read more...