The Rules of the High Court of Justice of the Isle of Man 2009 (the "Rules") shook the jurisdiction's civil justice system, completely changing how cases are run through the courts.
A year on, it has become clear that further changes, albeit more gentle, are required.
The Rules, the brainchild of the much respected late Deemster Kerruish, set up a comprehensive and detailed procedural code. They were designed to improve the case management of litigation and to update the civil legal system – but faced considerable opposition within the legal profession.
Manx litigation had, for two decades, been out of step with its big cousin in England since a similar change was introduced there in 1999. Both systems had been in parallel before 1999 and with the new 2009 Rules this state of affairs has returned. Although never directly stated, this appears to have been part of the agenda behind their introduction and, while denied at the time, the Manx Rules are a mirror image of the English Rules.
Clearly, given the frequency of cross border litigation, a certain commonality is an advantage. However, the change did end the uniqueness of the Manx system.
As someone with experience of working with the English old and new Rules, my view was that the change in England had helped the competent litigator and penalised the inefficient. But how have the new Rules worked out in the Isle of Man?
Well, somewhat like Windows, the "1.1" version of the Rules, when it comes, will be an improvement; ironing out various problems and drafting errors that always occur with a task of such magnitude. However, overall, the main issues are twofold.
First, the Rules do not contain comprehensive pre-action protocols and practice directions. These are essential tools in the areas of interpretation, practice and on costs, and encourage the settlement of cases. Their omission therefore impairs the usefulness of the new Rules, although guidance may be possible from the English system, which utilises them extensively and indeed could not work without them. The English system handles a far greater amount of litigation than does the Isle of Man, and so perhaps the omission of pre-action protocols and practice directions is understandable. However, this illustrates the problems in introducing Rules designed for a large jurisdiction into a smaller one.
Second, in England the Rules depend on District Judges to ensure the smooth running of the system through consistent and active case management. As a former Deputy District Judge, I know that this "box work" was a large part of one's job. The Island has no equivalent type of judiciary. The introduction of "Judicial Officers" was envisaged but none have been appointed and with the current economic climate there is little likelihood of this happening in the near future. This means that all the possible efficiencies offered by case management cannot be fully utilised as there is no judiciary to undertake the task. The Deemsters were fully stretched even before the new Rules were instituted and cannot be expected to take on this additional burden.
Overall the Rules are a work in progress – and, in my view, an improvement on the old Rules. They offer considerable potential to those familiar with their niceties, much to the advantage of their clients.
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