Isle of Man: "Unnecessary Delays And Costs Will Not Be Tolerated"

Last Updated: 25 March 2014
Article by David Wozniak

Thomas Jefferson once stated, "every generation needs a new revolution". In the Isle of Man rules and procedure for civil claims underwent a revision, if not a revolution, through the implementation of the 2009 High Court Rules ("the 2009 Rules"). The way in which the High Court deals with applications to vacate trial dates and amend pleadings has now changed.

September 1 2009 was an important day in the history of the Manx legal system as it was the day the 2009 Rules came into operation.1 The 2009 Rules are closely linked to the Civil Procedure Rules of England and Wales (the CPR) and represent a cornerstone of Manx Law. Like the CPR, they aim to provide a comprehensive procedural code to govern the conduct of all civil cases in the Isle of Man.

A new revolution

In Howell v DHSS2 His Honour Deemster Doyle, now her Majesty's First Deemster and Clerk of the Roles referred to "a new culture existing under the 2009 Rules". This new culture is due to the overriding objective, which is to enable the High Court to deal with cases justly. This includes saving expense, and dealing with the case in ways which are proportionate to the amount of money involved, the complexity of the issues, and the financial position of each party.

Some of the issues in that case were applications to vacate trial dates and late applications to amend pleadings. Deemster Doyle stated that these types of applications would be dealt with in light of the overriding objective, specified in the 2009 Rules;

"The court needs to make it plain that proposed amendments to pleadings left so late that trial dates need to be vacated will not be tolerated. The court needs to make it plain that applications to vacate trial dates on the basis that a previously laid down court ordered timetable has not been complied with will not be tolerated. Unnecessary delays and the incurring of unnecessary costs will not be tolerated."

This passage emphasises that the court's resources are limited, as such the overriding objective must be adhered to by counsel. Deemster Doyle reiterated in this case that civil disputes must be conducted efficiently, and that the position of other litigants and other court users must also be considered.

In essence, the public interest in the efficient use of court resources is a relevant consideration in the exercise of judicial discretions to permit amendments and adjournments.3 Deemster Doyle also stated that the courts in compact jurisdictions strive to do their best with limited resources. It is of paramount importance that the parties to legal proceedings use those limited resources efficiently and comply with court orders.4

Other Jurisdictions

These are contemporary issues for debate not just in the Isle of Man. In the Australian High Court case of Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 it was stated that, "the resolution of disputes serves the public as a whole not merely the parties to the proceedings". It also recognised that the efficiency or inefficiency of the courts had a bearing on the "health or sickness of commerce".

The Aon case demonstrated a refusal by the Australian High Court to grant leave for a late application to amend pleadings where complex commercial litigation was involved. It also emphasised the need for parties to make efficient use of court time, and the importance of considering other court users and to avoid vacation of trial dates.

To amend, or not to amend?

In InterRetire Limited v HSBC Securities Services (Isle of Man) Limited5 Deemster Doyle observed that;

"Amendments in general ought to be allowed so that the real dispute between the parties can be adjudicated upon provided that any prejudice to the other party caused by the amendment can be compensated for in costs and the public interest in the administration of justice is not significantly harmed."

and:-

"The Claimant should be permitted to make the proposed amendments. The Defendant can respond to the pleading in its defence and the Claimant can reply. The issues in dispute can no doubt be further clarified prior to trial. Prior to trial skilled and experienced Counsel can no doubt agree, if need be with the assistance of the trial Deemster, a concise list of issues for determination by the court at trial."

Therefore, applications to amend pleadings ought to be allowed provided that any prejudice caused to the other party by such amendment can be compensated for, and the interests of justice are not harmed. Counsel should seek to deal with proposed amendments at the earliest available opportunity.

Approaching last minute amendments

A little closer to the Isle of Man, geographically, Walker L J declared in England under the equivalent CPR provisions that;

"At the end of the day a balance has to be struck. The court is concerned with doing justice, but justice to all litigants, and thus where a last minute amendment is sought with the consequences indicated, the onus will be a heavy one on the amending party to show the strength of the new case and why justice both to him, his opponent and other litigants, requires him to be able to pursue it".6

It is clear that when an application has been submitted to the court, for a last minute amendment, the threshold is significantly higher when persuading the court to allow it. Furthermore, the applicant would need to satisfy the court that without the amendment a serious injustice may be done, because the amendment is the only way that the case can be argued fairly7.

Commentary

These cases demonstrate that applications to amend pleadings ought to be allowed, provided that any prejudice caused to the other party by such amendment can be compensated for, and that the interests of justice are not harmed.

However, if the applications to amend pleadings are left so late and they cause the trial date to be vacated unnecessarily, then they will not be tolerated by the court. In addition, an unnecessary increase in costs to the case, caused by the vacation of the initial trial date, will not be tolerated either. The court will have regard to the overriding objective when dealing with such applications. Consequently, it is evident that a new revolution of dealing with applications to vacate trial dates and applications to amend pleadings exists on the Isle of Man.

Footnotes

1. Howell v DHSS (CLA 1998/155 judgment October 6 2009);

2. Ibid

3. Ibid

4. Ibid

5. Deemster Doyle's judgment September 5 2012

6. Worldwide Corporation Ltd v GPT Ltd [1998] EWCA Civ 1894 (December 2 1998).

7. Ibid

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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