|
OUTER HOUSE, COURT OF SESSION
[2007] CSOH 110
|
|
P119/07
|
OPINION OF LORD MACKAY
OF DRUMADOON
in the cause
MRS PATRICIA
ANDERSON, The Sea Chest, East Voe, Scalloway, Shetland,
ZE1 0US
Petitioner
for
Judicial Review of
the omissions of Shetland Islands Council and Scottish Water in failing to
implement and discharge their duties in respect of drainage, sewage and roads
Respondents
ญญญญญญญญญญญญญญญญญ________________
|
Petitioner: Anderson, Morton Fraser
Respondents: Gale, Q.C.;
Ledingham Chalmers
McBrearty;
H B M Sayers; Hughes; Tods Murray
26 June 2007
[1] The
petitioner is 89 years of age. She
resides at The Sea Chest, East Voe, Scalloway, Shetland.
It is averred in the petition that the petitioner is vested in the title to
that property ("The Sea Chest"), as the surviving spouse of the late Major W.
A. Anderson. The petitioner also avers
that annually she pays a community charge in respect of The Sea Chest,
including elements for the statutory services of Shetland Islands Council, the
first respondents, and Scottish Water, the second respondents. Nicolson Brothers, land owners who have
developed land in East Voe in the vicinity of The Sea
Chest, have been convened in the proceedings as an interested party.
[2] The
petition proceedings commenced on 18 January
2007, when a first order was pronounced and a first hearing fixed
for 23 February 2007.
[3] In
the petition the remedies sought by the petitioner are set out in the following
terms:-
"(A) (1) Declarator that the Respondents are under a duty in terms of
section (1) of the Sewerage (Scotland) Act 1968 (as amended) to provide, at
reasonable cost, sewers or drains that will effectually drain the area in 'The
East Voe', Shetland to which this petition relates, and that they have omitted
or failed to do so.
(2) Declarator that the Respondents are not
entitled to maintain a
policy that they owe no duties to provide a surface water drainage system in
the area known as 'The East Voe', Shetland, and that their statement they have
no liability in that respect is ultra
vires et separatism unlawful.
(3) An Order for Specific Performance
requiring the Second Respondents to implement the duties incumbent upon them
under section 1(1) of the Sewage (Scotland) Act 1968 (as amended) by drawing up
(within 21 days or such other period as shall seem reasonable to the Court) a
plan providing, at reasonable cost, a system for effectually draining that area
of the East Voe, Shetland marked as Zone 3 on the SIB Burra and Trondra
Proposal Map of surface water; and
thereafter to implement said plan as soon as reasonably practicable.
(B) (1) Declarator that the Second Respondents are under a duty to
maintain the sewerage pipeline within the area of land owned by them on 'The
East Voe', Shetland and that they have omitted to do so.
(2) Declarator that Second Respondents are
not entitled to maintain a policy that they owe no duty to maintain the sewerage
pipeline or the land in which they are infeft or vested in the area known as
'The East Voe', Shetland, and that their statement they have no liability in
that respect is ultra vires et separatism
unlawful.
(3) An Order for Specific Performance
requiring the Second Respondents to restore the land formerly covering the
sewer pipeline hereinafter condescended upon that is owned or vested in them
and which has been eroded by water and to do so, within 21 days or such other
period as shall seem reasonable to the Court, by appointing a suitably
qualified and independent Engineer with instructions to take into account the
needs of all affected Parties and to draw up a specification for the repair of
damage to the surrounding area, the restoration of said sewerage pipeline to
its former condition, and the introduction of suitable measures to prevent any
repetition; and thereafter to implement
said specification as soon as reasonably practicable.
(C) (1) Declarator that the entitlement of the First Respondents as
Roads Authority under the Roads (Scotland) Act 1984 to create road drains
extends only to that which is necessary for effectually draining the road.
(2) Declarator that Shetland Islands Council
is not entitled to maintain a policy that they are entitled to allow other
parties to feed their surface water into road drains created under statute by
the First Respondents as Roads Authority and that their statement they have no
liability to exclude such water is ultra
vires et separatism unlawful.
(3) An Order for Specific Performance
requiring the First Respondents, within 21 days or such other period as to the
court shall seem reasonable, to draw up a specification or plan which will
effective (sic) drain the surface of
said B9074 Road and to take such steps as to the Court may seem reasonable to
exclude from the road drains under their control surface water being fed in by
other parties.
(D) (1) Declarator that as a result of the failure of the Second
Respondents to fulfil as condescended upon the duties incumbent upon them to
effectually drain off surface water the area to which this petition relates,
the petitioner has suffered loss and damage and inconvenience.
(2) Declarator that as a result of the
failure of the First Respondents to fulfil as condescended upon the duties
incumbent upon them to be expected from them as a reasonable and competent
Planning Authority, the petitioner has suffered loss and damage and
inconvenience.
(3) As Damages resulting from the failure of
the First and Second Respondents, jointly and severally or severally, to
perform their said statutory duties, payment by the Respondents (jointly and
severally or severally) to the Petitioner of the sum of FIFTY THOUSAND POUNDS
(ฃ50,000) STERLING (together with interest thereon at the rate of eight per
centum per annum from the date of citation hereof until payment) or such other
sum as may to the Court seem reasonable.
(E) The expenses of this application.
(F) Such further decrees or orders as may, in
all the circumstances of the case, seem to the Court to be just and
reasonable."
[4] The
petition called for a first hearing before Lord Menzies on 23 February 2007. On that occasion the petitioner was
represented by her son, Richard Anderson. Mr. Anderson is a member of
Faculty. He appeared on the instructions
of Lindsays, WS, the firm of solicitors who had raised the petition proceedings
on behalf of the petitioner and who still acted for the petitioner on 23
February. I understand that on 23
February Mr Anderson appeared in
wig and gown.
[5] On
23 February the first and second respondents were each represented by senior
counsel. Senior counsel for the first
respondents, the Shetland Islands Council, informed Lord Menzies that he held
two concerns as to the propriety of Mr Anderson appearing for the
petitioner who is his mother. The first
of these concerns related to the fact during earlier proceedings in the Sheriff
Court at Lerwick Mr Anderson had informed the
sheriff that he was a heritable proprietor of the property at East
Voe known as The Sea Chest. No mention of that was made in the
present petition. Senior counsel's
second concern was based upon the terms of the Code of Conduct of the Faculty
of Advocates as to counsel not accepting instructions to act in a professional
capacity in legal proceedings in which they have a direct personal interest in
the outcome.
[6] In
the event, the first hearing did not proceed before Lord Menzies on 23 February.
It was continued to allow intimation of the petition to Nicholson Brothers; to
allow parties to adjust their written pleadings; and to allow parties to lodge
notes of argument prior to the continued first hearing.
[7] On
25 April Lindsays, the petitioner's solicitors, wrote to the Deputy
Principal Clerk of Session intimating that they had withdrawn from acting for
the petitioner. The following day the
petitioner herself wrote to the Principal Clerk of Session informing the Court
that she had required to dispense with the services of Lindsays. In her letter
she confirmed, as she had previously explained to an official in the Petition
Department, that she would be proceeding with the case as a party litigant
"assuming that other solicitors are not found in the interim". On 2 May Lord Malcolm pronounced an
interlocutor appointing the second respondents' solicitors to serve a notice on
the petitioner in terms of Form 30.2 of the Appendix to the Rule of Court. Such a notice was duly served.
[8] The
case came before me for a continued first hearing on 10 May 2007. On that occasion Richard Anderson appeared at
the bar. He was not dressed in wig and
gown. He did not appear on the
instructions of a solicitor. The first respondents were represented by senior
counsel. Each of the second respondents
and the interested party was represented by junior counsel. As soon as I convened the court I intimated
that an issue arose as to whether it was competent for Mr Anderson to appear
before me, on behalf of the petitioner, in the capacity he sought to. I explained that it appeared to
me that Mr Anderson sought to appear for his mother not as a member of Faculty
instructed by solicitors, but in a personal capacity as her son.
[9] During
the course of the hearing which followed on 10 May Mr Anderson
explained that his mother was 89 years of age.
He explained that on account of his mother's general state of health and
the complexities of the factual and legal issues involved in the case, it was
not practicable for her to travel to Edinburgh
and appear on her own behalf. He stressed that there was a matter of urgency
about the petition because The Sea Chest was subsiding into the ground.
[10] Mr Anderson argued that when a Judge in the Court of Session
was satisfied that for one reason or another a party litigant was unable to
appear for herself, and to conduct a litigation she had raised, the Court had
an inherent power to allow another individual, who need not have rights of
audience before the Court, to appear and to argue the case on behalf of the
party litigant. Mr Anderson submitted
that it would be competent for me to allow him to appear on his mother's behalf
and that I should exercise the discretion, which he argued I had, to allow him
to appear.
[11] During the course of his submissions, Mr Anderson also informed
me that he held a Power of Attorney in his favour, which had been granted by
his mother. The Power of Attorney is
lodged as Number 6/49 of Process. It is
dated 16 July 2003 and
has been registered with the Office of the Public Guardian in terms of section
19 of the Adults with Incapacity (Scotland)
Act 2000. The Power of Attorney
authorises Mr Anderson to manage the whole financial and property affairs and
matters of the petitioner (" the Continuing Power of Attorney") and also to
manage her personal welfare matters ("the Welfare Power of Attorney"). Attached to the Power of Attorney are two
medical certificates granted under reference to section 15(3)(c) of the Adults
with Incapacity (Scotland)
Act 2000. Those certificates, which were registered together with the Power of
Attorney, indicate that on the date when the Power of Attorney was granted, and
on 8 September 2003, the doctor who signed both reports was satisfied that
the petitioner understood the nature and extent of the Continuing Power of
Attorney and the Welfare Power of Attorney.
Under reference to Reilly v James Beaton & Co 2004 SLT 103 Mr
Anderson argued that the existence of the Power of Attorney entitled him to
appear as a party to the action, or alternatively to appear as a representative
of his mother.
[12] In developing his submissions Mr Anderson also referred me to a
number of authorities, which are discussed in the Opinion of Lord Glennie in Edan Kenneil v Damon Kenneil &c ( Unreported 16 June 2006) on which Mr
Anderson founded. The Opinion in that
case related to an action of division and sale in respect of Ardpatrick Estate
in Argyll. In the course of his Opinion
Lord Glennie dealt with a preliminary issue as to whether Caroline Kenneil, who
appeared before him as a party in her own right, could also represent her
husband, Alistair Kenneil, who was the second defender. The second defender was
otherwise unrepresented at the hearing before Lord Glennie. Lord Glennie dealt with this preliminary
issue in the following terms:-
"Representation of the second defender
[12] In
considering these issues, a preliminary question arose as to whether Caroline
Kenneil, who appeared in her own right on certain of the issues as a secured
creditor, could represent her husband, the second defender, who was otherwise
unrepresented at the hearing. This was
opposed by the pursuer and the first defender.
The Reporter took a neutral position.
Having heard argument, I took the view that in the exceptional
circumstances of this case I should allow Mrs Kenneil to represent her
husband's interest.
[13] My reasons for doing so were as
follows. It is clear that, in the
ordinary case, a party is entitled to be represented in the Court of Session
only by himself, by a member of the Faculty of Advocates or by a solicitor with
extended rights of audience, known as a "solicitor advocate". I exclude any question of rights of audience
enjoyed by lawyers from other member states of the European Union or any
consideration of what may be the position when section 25 of the Law Reform
(Miscellaneous Provisions) (Scotland) Act 1990 comes into force. I refer to the Opinion of the Extra Division
in Asmat Mushtaq v Secretary of State for the Home Department
(unreported) 3 March 2006) at para [11], and to the decision of Lady Smith
in Tods Murray WS v Arakin Limited (unreported
31 October 2003) at para [61].
[14] The
right of a party to represent himself is, as is recognised in Tods Murray v Arakin, fundamental. To my
mind this right is not limited to circumstances where the party cannot secure
legal representation for financial or other reasons. It includes a case where the party simply
does not wish to instruct a lawyer, whether because of consideration of expense
or because he does not think a lawyer would do his case justice or for any
other reason whatsoever. This right of a
party litigant to speak in Court often raises problems. Neither his conduct in Court nor what he says
is constrained by any code of professional conduct. His submissions may not focus as closely as
would those of a professional advocate upon the relevant issues. He may not be aware of some of the
intricacies of the law or the law of evidence.
He may not appreciate the constraints imposed upon an advocate, for
example, in making any allegation of fraud or dishonesty. All of this puts a burden on a Court. It also puts a burden on the legal
representatives of other parties who will be expected to assist party litigants
- or more accurately to assist the Court in dealing with issues raised by party
litigant - insofar as they are able to do so without acting against the
interests of their client. The
difficulties are clearly set out in para 62 of Lady Smith's Opinion in Tods Murray v Arakin, with which I agree, although I express no opinion on the
last two sentences in that paragraph which raise issues which are far removed
from the case which I am here concerned.
[15] The
Courts in England
have recognised that a party litigant presenting his case in Court may be, or
may feel himself to be, at a disadvantage.
For this purpose they have, as a matter of discretion, often allowed the
party litigant to be assisted in Court by what has become known there as a
'McKenzie friend': McKenzie v McKenzie
[1971] P 33. The Courts in England have
now recognised that any application by a party litigant for the assistance of a
McKenzie friend engages Article 6 of the Convention for the Protection of Human
Rights and Fundamental Freedom, and have held that there is a strong presumption in favour of allowing such
an application: see, for example, In Re O (Children) [2006] Fam 1. To my mind, such considerations apply equally
to litigation in Scotland. Mr Lake, who appeared for the first defender,
helpfully told me that he knew of two cases where, in litigation in Scotland,
a McKenzie friend had been allowed to assist the party litigant. Another example appears from paragraph 1 of
the Opinion of Lord McEwan in Martin
Frost and John Parkes v Cintec
International Limited (unreported 9 September
2005). I am sure there must
have been others.
[16] Traditionally, the role of a McKenzie friend
has simply been to assist the party litigant in the submissions which the party
litigant himself makes to the Court. But
there have been occasions, in England,
where the Court has gone further and, in particular circumstances, allowed the
McKenzie friend to address the Court.
One such case was Izzo v Philip Ross & Co (a firm) (Times Law
Reports 9 August 2001). It would
seem from the report in In Re H (McKenzie
friend: pre-trial determination) [2002] 1 FLR 39, that that also was the role which it was intended Dr P should play in
the hearing to which the appeal related.
Although it appears that a statutory power now exists in England,
under s.27 of the Courts and Legal Services Act 1990, for the Court to grant a
right of audience in relation to particular proceedings, it does not appear
that this statutory power lay at the heart of those decisions. Be that as it may, it seems to me to be clear
that the Court must have power to accede to a motion by a party litigant that
the person assisting him in presenting his case be allowed to address the Court
on behalf of the party litigant, even though the Court is likely to exercise
such a power only in exceptional circumstances.
To hold otherwise, it seems to me, would be inimical to principles of
access to justice. I note that in Asmat Mushtaq v Secretary of State for the Home Department, in which it was held
that a Mr McDonald had no right of audience in Court on behalf of the
petitioner, the Court permitted the petitioner's brother-in-law to speak on her
behalf. That was because of her
incomplete command of English. The Court
was at pains to point out that the brother-in-law, in effect, acting as an
informal interpreter for the petitioner.
Nonetheless, I consider that this approach gives some support for the
notion that the Court has a discretion in the matter. I emphasise that this discretion to allow a
lay person to speak for a party litigant (if he can be called such in those
circumstances) is quite different from a party's right to be represented in
Court only by advocates and solicitor-advocates, on which the position is made
clear in the authorities to which I have referred.
[17] How should that discretion be
exercised? As I have already indicated,
I anticipate that it would only be exercised in favour of allowing such
representation in exceptional cases.
Each case will depend upon its own facts. In the present case it seemed to me that the
circumstances pointed overwhelmingly to the desirability of this course. Part of those circumstances lie in the
background to the dispute. The second
defender and his wife have, so far as I am aware, effectively acted as one in
these proceedings and in the disputes which have led to them. In particular, since the present issue is
about the fate of the forfeited deposit of ฃ370,000, it is right to point out
that, as has been stated on a number of occasions and not contradicted
(although I do not think it is formally admitted), the deposit put up by the
second defender was in fact put up using his wife's money. The advance of that money forms the
background to one of the standard securities in issue at the earlier stage of
these proceedings. I have no doubt that
if the second defender were himself to speak on his own behalf, he would be
saying no more than that which he and his wife together had decided upon. He would no doubt turn to his wife, sitting
in Court as a McKenzie friend, for help
on what to say. If, conversely, his wife
were allowed to speak for him, I would hear precisely the same. I accept fully that if Caroline Kenneil is
allowed to speak on behalf of her husband, the Court, and possibly lawyers to
the other parties, will be placed in the same difficulties as when a party
litigant speaks, and so to some extent has proved to be the case. But these difficulties in the present
circumstances are not made worse by the fact that the party litigant is
represented by his wife speaking on his behalf.
If he spoke, and she sat beside
him or behind him as a McKenzie friend, the Court would be addressed
with the same submissions.
[18] Other
factors were to my mind also of relevance.
First, these proceedings have been ongoing for some considerable
time. It is clear that Mrs Kenneil is as
familiar with the paperwork as her husband, probably more so. Secondly, Notes of Arguments 84 and 85 of
process, containing factual assertions and argument relating inter alia to the question of the
deposit, have been lodged in process on behalf of the second defender. They were lodged, as I understood it, by
Caroline Kenneil exercising the Power of Attorney. It was accepted by counsel for the other
parties that the documents were properly lodged on behalf of the second
defender. The second defender's
averments and arguments therefore required to be addressed; and it was therefore not a large step to
allow Caroline Kenneil, who had in part drafted them, to speak to them. Thirdly, this hearing was fixed so that
the matters remaining in dispute could
be dealt with promptly. The second
defender is presently out of the country.
He has been represented by solicitors and counsel in the past, but he
has just changed solicitors and with their assistance he drew up a Power of
Attorney in favour of his wife. I was
led to believe that he and his solicitors thought that this would enable his
wife to speak on his behalf. Having
considered the Power of Attorney and heard submissions about it, I formed the
clear view that it did no such thing.
Indeed, it would be difficult to see how it could achieve this purpose
consistent with the rule to which I have already made reference about
representation in Court only by advocates or solicitor-advocates. To allow an exception whenever a party has
granted a Power of Attorney to another would be to drive a coach and horses
through that rule. Nonetheless, if the
second defender had made arrangements with a view to his being represented at
this hearing by his wife, it would have been manifestly unfair to him had I
refused to let her speak for him and the hearing had gone ahead without him
being represented at all. Equally, any
discharge of the hearing fixed for this session would have defeated the purpose
of endeavouring to get the remaining issues in dispute dealt with
promptly. In all those circumstances, it
seemed to me clear that I should allow him to be so represented at this hearing
by Caroline Kenneil, and I so ruled."
[13] In inviting me to follow the same approach as Lord Glennie
Mr Anderson stressed that it was clear from Article 4 (G) of the petition that
issues arose as to whether or not the petitioner had suffered an interference
with her human rights under Article 8 of the European Convention of Human
Rights and Article 1 of the First Protocol to the Convention. He submitted that as it was open to the
courts in England
to allow a lay representative to appear for a party litigant, even where that
lay representative did not hold rights of audience before the court, it would
be strange if the laws of England
and Scotland
were different on that issue. He did,
however, accept that there are no statutory provisions applicable in Scotland
in similar terms to those to be found in section 27 of the Courts and Legal
Services Act 1990 (as amended).
[14] Mr Anderson confirmed that he was not seeking to be sisted as a
party to the action. His basic position
was that the petitioner was incapable of appearing for herself and that he
should be allowed to appear for her. The
need for that had arisen because, although, when the action had been commenced,
it had been understood that the petitioner had insurance cover for legal
expenses relating to The Sea Chest, that had turned out not to be the
position.
[15] Senior counsel for the first respondents and counsel for each
of the second respondents and the interested party opposed Mr Anderson's
application that he be allowed to appear on behalf of the petitioner at the
continued first hearing. The position
they adopted was founded upon the views of the Extra Division in Asmat Mushtaq v Secretary of State for the Home Department (Unreported 3 March
2006), in particular in paragraph [11] of the Opinion of the Court delivered by
Lord Macfadyen.
[16] Overnight I considered the submissions that I had received on
10 May. I also had occasion to consider
the terms of the Guidance issued by the President of the Family Division in England
and Wales on
the role of "McKenzie friends". The
Guidance provides:-
"What a McKenzie Friend May Not Do
ท
A MF has no right to act on behalf of a litigant
in person. It is the right of the litigant in person to use the assistance of a
MF if he so requires.
ท
A MF is not entitled to address the court, nor
examine any witnesses. If he does so he becomes an advocate and requires the
grant of a right of audience.
ท
A MF may not attend a closed court unless the litigant has received permission from the
court for the MF to do so at the start of a hearing.
ท
A MF may not act as the agent of the litigant in
relation to the proceedings nor manage the litigant's case outside of court,
for example, by signing court documents.
Rights of Audience
ท
Sections 27 & 28 of the Courts and Legal
Services Act 1990 govern exhaustively rights of audience and the right to
conduct litigation. They provide the court with a discretionary power to grant
lay individuals such rights.
ท
A court may grant an unqualified person a right
of audience in exceptional circumstances
only and only after careful consideration. The litigant must apply at the
outset of a hearing if he wishes the MF to be granted a right of audience or
the right to conduct litigation."
On 11 May I drew the terms of that
Guidance to the attention of parties, before I delivered my ruling which
rejected Mr Anderson's application that he be allowed to appear for his mother,
the petitioner. When I announced my
decision, I indicated that I would issue an Opinion explaining my reasons for
that decision.
[17] Having considered the issues raised by Mr Anderson, I reached
the clear conclusion that it would not be competent for me to allow him to
appear on his mother's behalf during the continued first hearing. In doing so, I accepted the submissions on
behalf of the respondents and the interested party that the law as to who can
appear before and make submissions to the Court of Session is as summarised in paragraph
[11] in the Opinion of the Court in Asmat
Mushtaq v Secretary of State for the
Home Department "Cases in this court
may be conducted by (a) the party him or herself, (b) a member of the Faculty
of Advocates or (c) a solicitor who has extended rights of audience in this
court under section 25A of the Solicitors (Scotland) Act 1980."
[18] Mr Anderson is, of course,
a member of Faculty, but his rights of audience in the Court of Session
can only be exercised when he appears before the Court in wig and gown, having
been instructed by a solicitor to appear on behalf of a party to an
action. During the course of his
submissions, Mr Anderson made clear that he was not seeking to represent
his mother by exercising his rights of audience as a member of Faculty. He sought to appear as an individual, on the
basis that he was the son of the petitioner, who was unable to be present to
appear for herself. It was quite coincidental, and of no significance to the
application he made, that he is a qualified lawyer and a member of the Faculty
of Advocates.
[19] In reaching my decision, I did, of course, give careful
consideration to the terms of Lord Glennie's Opinion in Edan Kenneil and to the authorities to which Lord Glennie referred.
I have no reason to disagree with the views expressed by Lord Glennie in
paragraphs [14] and [15] of his Opinion insofar as they concern the problems
faced by party litigants who represent themselves or indeed the problems faced
by the Court in dealing with the submissions of party litigants. Moreover, as Lord Glennie correctly states
the courts in England and Wales have for over 30 years allowed party litigants
to be assisted in court by what have become to be known as "McKenzie friends"
(see McKenzie v McKenzie [1971] P 33). It is
also correct that the application by a party litigant for the assistance of a
McKenzie friend engages Article 6 of the Convention for the Protection of Human
Rights and Fundamental Freedoms (see In
Re O (Children) [2006] Fam 1).
[20] As far as the position is Scotland
is concerned, in my own experience many party litigants are assisted in
conducting their litigation before the Court of Session by friends and
acquaintances, who sit behind them in court and fulfil in an informal
manner the role that a McKenzie friend
would be permitted to fulfil in England. That practice appears to be illustrated by
the approach adopted by Lord McEwan in Martin
Frost and John Parkes v Cintec
International Limited (Unreported 9 September 2005), in which he
allowed Mr Parkes, who appeared as a party litigant, to be assisted by a Mr
McDonald, who had previously acted as a McKenzie friend for Mr Parkes in
related proceedings in England.
[21] However my understanding as to the circumstances in which
McKenzie friends have been allowed to address the court in England,
on behalf of litigants in person, differs from that of Lord Glennie. In paragraph [16] of his Opinion Lord Glennie
refers to two authorities by way of illustration of his understanding. The first of these authorities is Izzo v Philip Ross & Co (a firm) (Times Law Reports 9 August
2001). In my view it is clear from the
report in that case that before an individual, who has been authorised to assist a litigant in person as a McKenzie
friend, can address a court in England on behalf of the litigant in person, the
court has to exercise its statutory powers under the provisions of section
27(2)(c) of the Courts and Legal Services Act 1990 granting a right of audience
to the McKenzie friend. In other words, the court does not have an inherent
power to permit a McKenzie friend to address the court on behalf of the
litigant in person.
[22] What a court in England
and Wales can
do, however, is to exercise its statutory powers and permit a McKenzie friend
of a litigant in person to act as an advocate. Section 27 of the Courts and
Legal Services Act 1990 provides as follows:-
"(1) The question whether a person has a right
of audience before a court, or in relation to any proceedings, shall be
determined solely in accordance with the provisions of this Part.
(2) A person have a right of audience before
a court in relation to any proceedings only in the following cases -
(a) where -
(i) he has a right of audience before that
court in relation to those proceedings granted by the appropriate authorised
body; and
(ii) that body's qualification regulations
and rules of conduct have been approved for the purposes of this section, in
relation to ... that right;
(b) where paragraph (a) does
not apply but he has a right of audience before that court in relation to those
proceedings granted by or under any enactment;
(c) where paragraph (a) does
not apply but he has a right of audience by that court in relation to those
proceedings;
(d) where he is a party to
those proceedings and would have had a right of audience, in his capacity as
such a party, if this Act had not been passed;
or
(e) where -
(i) he is employed
(whether wholly or in part), or is otherwise engaged, to assist in the conduct
of litigation and is doing so under instruction given (either generally or in
relation to the proceedings) by a qualified litigator; and
(ii) the proceedings are being heard in chambers in the High Court or a
county court and are not reserved proceedings."
No similar statutory provisions apply
in Scotland
[23] The other authority referred to by Lord Glennie in paragraph
[16] of his own Opinion is In Re H
(McKenzie Friend :pre-trial determination) [2002] 1 FLR 39. Lord Glennie's impression from the report of
the Court of Appeal hearing in that case appears to have been that it was
intended that Dr P, the McKenzie friend, should address the lower court. I do
not read the Judgment of Thorpe LJ ( with which Keene LJ concurred) to that
effect. In my view, there is nothing in the report in In Re H (McKenzie Friend :pre-trial determination) to support the view that the court in England
considers that it has an inherent power at common law to allow an individual,
without rights of audience, to address the court on behalf of a litigant in
person.
[24] In these circumstances, and in the absence of any Scottish
authority supporting Lord Glennie's approach, I find myself unable to agree
with his view that a Judge of the Court of Session must have the power to
accede to a motion by or on behalf of a party litigant that the person
assisting the party litigant in presenting his case to the Court should be
allowed to address the Court on behalf of the party litigant. I consider the
matter to be one of competency. No doubt it might be of assistance to the Court
in some cases if an individual, who does not hold the rights of audience before
the Court of Session, was to be allowed to address the Court on behalf of a
party who would otherwise be required to address the Court himself as a party
litigant. In certain instances that might also prove to be of assistance to the
other parties to an action. However, the fact that such an arrangement might in
certain instances prove to be of practical assistance does not, of itself,
render it competent.
[25] Moreover, for an individual to address the Court on behalf of a
party litigant is a different role from that of an individual acting as an
informal interpreter for a party litigant. That latter was apparently the role
played by the petitioner's brother-in-law in Asmat Mushtaq v Secretary of
State for the Home Department . In these circumstances, I do not find in
what was allowed to happen in that latter case any support for the notion that
the Court has a discretion in a case such Egan
Kinneil v Damon Kinneil and Others or the present one to allow a lay
individual to address the Court on behalf of a party litigant.
[26] For the sake of completeness I should confirm that I do not
consider that the power of attorney that the petitioner granted in favour of
her son is of relevance. On that matter I agree with Lord Glennie's views, as
set out in paragraph [18] of his Opinion. To allow an exception to the normal
rules about rights of audience whenever a party granted a power of attorney in
favour of another would indeed drive a coach and horses through those
rules.
[27] On 11 May 2007,
the interlocutor I pronounced fixed a By Order hearing for 20 June. This was
done to allow the petitioner time to clarify her position regarding
representation in these proceedings. In the event, by the time the case called
before me again on 20 June, the petitioner had engaged the services of another
firm of solicitors. They, for their part, instructed Mr Anderson to appear on
behalf of the petitioner at the By Order hearing on 20 June, which he did in
wig and gown. With the agreement of all parties, it was agreed that a further
diet should be fixed for the continued first hearing.
