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:
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:
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  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:
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.
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.
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