New rules which will allow lay representatives to speak on behalf of party litigants in Sheriff Courts will come into force on 4th April 2013. A lay representative is known in England/Wales as a McKenzie Friend, and a party litigant is known as a Litigant in Person.
The new rules will enable a Sheriff , on the request of the party litigant, to permit a named individual (who must be unpaid) to appear at a specified hearing for the sole purpose of making an oral submission on behalf of the party litigant at that hearing.
To request such a hearing, a request should be made orally on the date of the first hearing at which the litigant wishes the individual to make oral submissions, be accompanied by a document signed by the person named.
The rules, which come into force on 4 April 2013, follow the report of a joint working group chaired by Lord Pentland, with members of both the Court of Session and Sheriff Court Rules Councils, which conducted a public consultation. They apply to each of the ordinary cause, summary application, summary cause and small claims processes in the sheriff court.
The sheriff may grant the request only if he or she is of the opinion that it would assist the sheriff’s consideration of the case to grant it, and may also of his or her own accord or on the motion of a party to the proceedings withdraw such permission.
This is progress, and good progress at that. Treatment of party litigants in the Sheriff Courts had previously been poor on numerous occasions; one party litigant I know who represented himself during a 2 year long residence battle, was treated with the utmost contempt by the Sheriffs. Many of those who represent themselves do so because they aren’t entitled to Legal Aid (which isn’t being withdrawn for family cases in Scotland – the Scottish legal Aid Board is a separate entity from the Legal Services Commission which over-saw legal aid in England/Wales) and can not afford to pay the legal fees of a solicitor. There is often little help out there for party litigants, so these new rules are cautiously welcomed by myself – how they will work in practice remains to be seen.