NOTES IN RESPECT OF TALKS TO TRAINEE MANX ADVOCATES (Talk at 6pm on 28 April 2014) MANX CASE LAW ON THE RULES OF THE HIGH COURT OF JUSTICE 2009 C O N T E N T S Pages Precedent in Manx law ……………………………………………………………………………… 2 - 6 The overriding objective and the new litigation culture ………………………………… 6 - 20 Summary judgment and strike out …………………………………………………………….. 20 - 24 Split trials ………………………………………………………………………………………………… 24 - 32 Disclosure of information, pleadings, further information and expert evidence .. 32 – 38 Litigation privilege ……………………………………………………………………………………. 38 Amendment of pleadings ………………………………………………………………………….. 38 - 49 Interim payments …………………………………………………………………………………….. 49 Relief from sanctions ………………………………………………………………………………… 49 - 51 Second appeals in respect of the assessment of costs …………………………………. 51 - 58 Universalism and Rule 4.16(1)(b) ………………………………………………………………. 59 - 60 Litigation friends ………………………………………………………………………………………. 60 General Civil Restraint Order ……………………………………………………………………… 60 Penal notices …………………………………………………………………………………………… 61 Exclusion of evidence ……………………………………………………………………………..… 61 - 62 Rule 14.9(1) of the 2009 Rules and extension of time to appeal ……………….….. 62 – 63 Extension of time …………………………………………………………………………………….. 63 Compliance with court orders ……………………………………………………………………. 63 - 65 Jurisdictional issues in maritime claims ………………………………………………………. 66 - 67 Service out of jurisdiction and appropriate forum issues ………………………………. 67 - 69 Enforcement of executions ……………………………………………………………………….. 69 Setting aside default judgment ………………………………………………………………….. 69 Security for costs………………………………………………………………………………………. 69 - 70 Rules 2.43 and 2.44 and service ………………………………………………………………… 70 Stale matters …………………………………………………………………………………………… 71 Stays ………………………………………………………………………………………………………. 71 Letters of request …………………………………………………………………………………….. 71 - 72 Rule 14.14(2) ………………………………………………………………………………………….. 72 Offers to settle …………………………………………………………………………………………. 72 Costs in a small claims context ………………………………………………………………….. 72 Lord Dyson’s lecture in 2013 ……………………………………………………………………… 72 - 79 General ……………………………………………………………. ……………………………………. 79 – 81 1 Precedent in Manx law 1. Before turning specifically to Manx case law on the Rules of the High Court of Justice 2009 (the “2009 Rules”) reference should be made to precedent in Manx law. The Appeal Division in Dominator Limited v Gilberson SL (judgment 1 May 2009 subsequently referred to at paragraph 39 of the Appeal Division’s judgment in Hamblett delivered on the 12 September 2013) stated: “91. We note that Mr Jacobs also made reference to Frankland v R [1987-89] MLR 65, at 80, where Lord Ackner observed that : ‘Decisions of English courts, particularly decisions of the House of Lords and the Court of Appeal in England, are not binding on Manx courts, but they are of high persuasive authority … Such decisions should generally be followed unless there is some provision to the contrary in a Manx statute, or there is some clear decision of a Manx court to the contrary, or exceptionally, there is some local condition which would give good reason for not following the particular English decision.’ 92. For the purposes of this appeal it is unnecessary for this court to express any view as to whether or not such dicta have the same force today as they had over 20 years ago. However, even without the benefit of full argument on such issue, we are bound to express some doubt whether they do so in the context of a jurisdiction which is becoming increasingly independent of English statutes and procedure and is frequently choosing to be informed by or to adopt the common law and practices found in jurisdictions other than England. 93. Similarly it may be that this court`s decision in In the Matter of the Petition of Cussons [2001-03] MLR 539, at 548, where this court stated: ‘The correct approach seems to us to be to establish the English precedent … and to follow that precedent unless there is any justification to depart from it in line with Frankland v R.’ will need at some stage to be reconsidered.” 2. The following are extracts from Bitel v Kyrgyz Mobil (Deemster Doyle’s judgment 30 November 2007): “Precedent 529. Counsel have referred to authorities from various jurisdictions including the Isle of Man, England and Wales, Jersey, Guernsey, the United States of America, Australia, Canada and the British Virgin Islands. In such circumstances it may be of some assistance to set out the Manx law position in relation to precedents from other jurisdictions. 530. If a point of law is covered by local Isle of Man authority especially if that authority is from the Appeal Division or the Privy Council dealing with an appeal from the Isle of Man then it is to that authority which the court should turn in the first instance. 2 531. If however there is no local binding authority then it is appropriate for counsel and the court to look beyond local frontiers. 532. Lord Ackner sitting in the Judicial Committee of the Privy Council in Frankland and Moore v R 1987-89 MLR 65 at page 80 stated: "Decisions of English courts, particularly decisions of the House of Lords and the Court of Appeal in England, are not binding on Manx courts, but they are of high persuasive authority, as was correctly pointed out by Glidewell, J.A. in giving the judgment of the Staff of Government Division (Criminal Jurisdiction). Such decisions should generally be followed unless either there is some provision to the contrary in a Manx statute or there is some clear decision of a Manx court to the contrary, or, exceptionally, there is some local condition which would give good reason for not following the particular English decision. The persuasive effect of a judgment of the House of Lords, which has largely the same composition as the Judicial Committee of the Privy Council, the final Court of Appeal from a Manx court, is bound to be very high.” 533. Manx law has developed significantly since Lord Ackner uttered those words over twenty years ago now. 534. The traditional position in relation to English precedent in Manx law was briefly set out at pages 449-463 of Solly's Government and Law in the Isle of Man (1994). At page 463 a relatively young advocate endeavoured to summarise the position as follows: "In summary, it is clear that English decisions are not strictly binding on Manx courts but that they are of high persuasive value and will frequently be followed in the absence of special circumstances or local precedent to the contrary. It is to be hoped that Manx common law will develop independently in accordance with the needs, requirements and interests of the inhabitants of the Isle of Man and indeed the international community of which the Island is a part. It is to be hoped that Deemsters will not slavishly follow English decisions, which in certain cases may not be in the best interests of the Island, in areas where it would be more appropriate to develop Manx law in a different way to the way in which English law has developed and is developing.” 535. Judge of Appeal Hytner in Barr and Anglo International Holdings Limited 1990-92 MLR 398 at page 409 stated: "Since this court is not in any way bound by decisions of the English courts it should not be assumed that we would follow dicta abandoned by Parliament.” 536. In City and International Securities Limited 2001-03 MLR 239 Deemster Cain had little difficulty in not following the majority judgments in Home Office v Harman [1983] A.C. 280 (House of Lords) which had been challenged before the European Commission of Human Rights. 3 537. In Aguilar v Anglican Windows (IOM) Limited 1987-89 MLR 317 at 325 an advocate endeavoured to persuade Deemster Corrin not to follow the Privy Council decision in Selvanayagam v University of W Indies on the grounds that it had been the subject of criticism and that their Lordships had confused remoteness and mitigation. Deemster Corrin at page 325 stated that the decision "is, nevertheless, a decision of the Privy Council and, if not actually binding, is very persuasive authority in this court, and I propose to follow it.” 538. Deemster Corrin in Cusack, Cotter v Scroop Limited (judgment 16th January 1997) stated at page 9: "The Isle of Man is an active member of the Commonwealth and whilst historically it has tended to follow English law I feel quite free to look for guidance to other Commonwealth countries as there is no binding or persuasive authority to the contrary in England.” 539. The High Court of Australia in Cook v Cook (1986) 162 CLR 376 at 390 stated: "…the history of the country and of the common law makes it inevitable and desirable that the courts of this country will continue to obtain assistance and guidance from the learning and reasoning of United Kingdom courts just as Australian courts benefit from the learning and reasoning of other great common law courts.” 540. Thanks in the main to Deemster William Cain and to Dr Alan Milner of Law Reports International the Island has had an excellent system of local law reporting for some many years now. Increasingly it is to our own local judgments that we are turning in dealing with the legal issues of the day. 541. In addition to applying our own local precedents Manx courts will also continue to benefit from the learning and reasoning of judgments of the English courts and "other great common law courts" including the High Court of Australia.” 3. Manx law has come a long way since the words written by Attorney General Ramsey B Moore in his useful book on The Isle