Isle of Man: Pleading For Relief From Sanctions – The Failure To Provide Evidence

Last Updated: 29 July 2014
Article by Peter Taylor

Civil litigation in the Isle of Man in the 21st century

The Rules of the High Court 2009 brought in a new regime for the conduct of Civil Litigation on the Isle of Man. At the time, His Honour Deemster Doyle, sent out a clear message in his Judgment in Howell v DHSS ORD 09/24 6 October 2009 what the Judiciary expected:

Parties to legal proceedings and their advisers will have to wake up to the new reality of civil litigation in the 21st century. More and more, courts will engage in active and robust case management. Litigants and Advocates need to be aware that under the 2009 Rules there is a new culture to civil litigation in this country and they need to deal with cases more expeditiously and more efficiently than in the past.

The full effects of a failure by the Claimant and his advisors to take heed of this warning were felt in the recent case of O'Brien v Bernhard Schulte Shipmanagement Limited and Futuresonic Cleaning Limited SUM 13/130 1 July 2014.

Background to the case

Mr O'Brien, the claimant, brought a personal injury claim arising from an accident at his place of work. The claimant filed a claim a few days before the expiry of the three year limitation period for personal injury claims. The action was brought naming only one defendant but a few months later before the Claim Form was served on the named defendant the claimant joined a second defendant by amending the Claim Form.

The claimant then served the Claim Form on both defendants but did not serve his Particulars of Claim setting out the full basis of his claim and losses.

How the claim was conducted was described by Deemster Corlett as; "a lamentable history of failure".

Complying with the Rules of the High Court 2009

When a party has failed to comply with a Rule, Practice Direction or Court Order he or his advisors will face sanctions for those failures, to avoid the imposition of sanctions the party will need to apply for relief from those sanctions.

In O'Brien both named defendants applied for the ultimate sanction of strike out to be imposed for the claimant's failures to comply with the provisions of the Rules of High Court 2009.

The claimant eventually applied for a relief from the sanction applied for to be imposed and the applications moved to a hearing.

Relief from Sanctions the Court's considerations

The Court in the Isle of Man when considering whether to grant or impose a sanction has to go through the "checklist" as set out in Rule 2.59 of Rules of the High Court 2009.

It is therefore vital that the party making the application for relief to address each point in that list and provide evidence, usually in the form of a witness statement or statements to support the application.

The Court in O'Brien was highly critical in relation to the evidence or more importantly the lack of evidence put before it on which to make its decision on whether to grant a relief from sanctions, Deemster Corlett at paragraph 74 of his Judgment stated unequivocally that:

There has been a failure by the claimant to support the applications by adequate evidence. The evidence in relation to relief from sanctions is barely sufficient to get the application off the ground at all, let alone for it to succeed.

Clearly without supporting evidence the Court cannot evaluate the criteria and will have no option, it seems, but to be unable to exercise a discretion to grant the application for relief.

Limitation Act 1984 setting aside the limitation periods

The claimant in O'Brien also asked the Court to exercise its discretion in relation to setting aside the limitation period in respect of joining the second defendant.

Previously the Court did not have discretion to set aside the time limit as by filing a claim in time there was no prejudice to the claimant and a second defendant could not be joined to the claim outside the time period set by Section 11 of the Limitation Act 1984.

However, the Court accepted that it did indeed have a discretion to join a second defendant as Neill v MacDonald [1984-86] MLR 370, the only case previously decided in this Jurisdiction on this point, had almost certainly been overtaken by the overruling of the case of Walkley v Precision Forgings by the House of Lords in the case of Horton v Sadler [2007] 1 AC 307.

The claimant could therefore ask for the Court to exercise its discretion to set aside the time limit. Again the claimant when asking the Court to exercise the discretion was required to address each of the points the Court had to consider in Section 31 (3) Limitation Act 1984. The Court was not presented with such evidence and this failure was listed amongst the lamentable failures by Deemster Corlett:

I am also unimpressed, I have to say, with the complete failure to address the issues set out in the Limitation Act 1984. It has given the Court absolutely no basis upon which to exercise its discretion in that regard, so that constitutes in itself a failure to comply with the relevant law.

Lessons learnt

The case is a lesson for the unwary, or those who delay, the Rules of the High Court 2009 clearly set out the framework for civil litigation which the Courts expect to be followed to ensure that cases progress efficiently and do not waste Court time. The comments made by Deemster Doyle in Howell reiterated by Deemster Corlett in O'Brien are now clear and unequivocal.

Fairness and efficiency in legal proceedings are too important simply to be left to the parties to legal proceedings. Courts must impose strict timetables upon the parties to legal proceedings and should ensure that such timetables are adhered to and where, without good reason, they are not the parties and their advisers should not expect sympathy or further indulgence from the courts. If they do not receive what they perceive to be justice then they will only have themselves to blame for their inefficient use of court resources and for their failure, without reasonable excuse, to comply with court orders.

Advocates are, therefore, well advised to ensure that the procedures set out in the Rules of the High Court 2009 are strictly followed. Where a failure is anticipated then prompt applications to extend time periods will be better received by the Courts than applications for relief from sanctions.

When there has been a failure by a party to comply with a Rule or Court Order then a prompt application for a relief from the sanction should be made and that application must be supported by evidence dealing with each point the Court has to consider in deciding whether to grant the relief, impose a sanction or exercise its discretion.

The failure to provide any evidence supporting applications as in O'Brien case could well lead to the ultimate sanction of strike out being imposed with the likely consequences that the party's Advocate becomes the party being sued.

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.