Temporary Advocates Licences (“TALs”)
1. What is a TAL?
A licence issued by the First Deemster (Judge) to a person qualified as a lawyer in another jurisdiction to act as an Isle of Man Advocate in specific / named proceedings.
2. Why are TALs available?
To provide access to legal representation from an off-Island lawyer if appropriate legal representation from a Manx Advocate is not available on Island. The particular circumstances in which an application can be made are explained below.
3. What powers govern the process?
4. Who considers applications for the issue of a TAL?
Under section 15 of the Act, the First Deemster is authorised to issue TALs. The Second Deemster can also deal with an application in the absence of the First Deemster.
5. When can a TAL be issued?
A TAL can only be issued:
a) to someone who is qualified as defined in the Act (section 17(1)); and
b) for specific named proceedings in the Isle of Man (section 17(2)(a)); and
c) if one of the conditions set out in the Act applies (section 17(2)(b)).
Please note that ALL three requirements must be proven, or a TAL will be refused.
6. What does the First Deemster have to be satisfied with in order to issue a TAL?
Section 15 of the Act gives the First Deemster power to issue a TAL to a person who is qualified under section 17 of the Act. Section 17 (1) of the Act states that in general, a person is qualified for the issue of a TAL if they are:
a) a member of the Bar of England and Wales (an English Barrister or QC);
b) a member of the Scottish Bar; or
c) a member of the Bar of Northern Ireland,
who can appear in the highest courts of the jurisdiction in which they are qualified and they satisfy the First Deemster that they are a fit and proper person to be an Advocate.
If an individual is suitably qualified, the First Deemster may only issue a TAL if certain conditions are satisfied.
Section 17(2) of the Act states that the First Deemster can issue a TAL to a person who is qualified under subsection 17(1) only if he is satisfied:
a) that the licence is required for the purposes of specific proceedings before a court, a tribunal, or a commission or committee of inquiry in the Island (this includes the hearing of a discrete application, a trial or an appeal); and
b) that –
(i) no Isle of Man Advocate is available for such proceedings; or
(ii) such an Advocate is available but could not act without a conflict of interest occurring; or
(iii) the proceedings require the knowledge and experience of a nature not ordinarily available in the Island; or
(iv) the proceedings are likely to be so lengthy that they would impose unreasonable demands on the time and resources of such an Advocate
A TAL may be limited to a specific part of a case or may be unlimited so that the individual can represent you at any stage of proceedings.
7. Who can make an application for the issue of a TAL?
An application for a TAL can only be made by the party named in the proceedings who wishes to be represented by a person qualified as a lawyer in another jurisdiction, or their Advocate. Applications for the issue of a TAL cannot be made by the person you want to represent you i.e the off-Island Barrister.
The person making the application bears the burden of proving the test for the granting of a TAL has been satisfied.
8. Is there an application form?
There is no official Court Form, however the Court’s website has a sample form which a person may use if they wish. Otherwise, the request for a TAL should be in the form of a written application and it should be signed and dated by the applicant.
9. What should an application for the issue of a TAL include?
You are required to set out the specific grounds you rely upon from those listed at Section 17(2) of the Act (see the list above). A general statement is not sufficient.
If the grounds for your application are that the proceedings require knowledge and experience of a nature not ordinarily available from any local Advocates (Section 17(2)(b)(iii)) then the particular knowledge and experience required for the case must be clearly set out and reasons provided that such knowledge or experience is necessary. The details of the practice or experience of the person you wish to have the TAL issued to must also be set out. It is not sufficient to show that the knowledge or experience is not available within a specific law firm. You must show the knowledge and experience is not available in the Island generally from Manx Advocates as a whole.
If the grounds for your application are that there is no Advocate available, you should evidence that you have made significant efforts to obtain representation from a Manx Advocate, all of which have failed. Where possible, this should include copies of correspondence demonstrating the enquiries you have made and the responses you have received.
As well as the information set out above, your application should also include:
a) the serial number of the proceedings; and
b) the name of the parties to the case; and
c) an up to date practising certificate and curriculum vitae of the person you wish to have the TAL issued to.
10. Is there a fee for the application?
Yes, pursuant to Section 8 of the Court Services Fees Order, the up to date version of which can be found here
In certain circumstances, you may be able to apply to the Isle of Man Court for the fee to be reduced or cancelled. The application form can be found here. The guidance notes on when you can apply can be found here.
11. Where do I file my application?
Applications are to be filed in hard copy at the Isle of Man Courts of Justice, Deemsters Walk, Bucks Road, Douglas. At the same time as filing the application you must provide a copy of it to the other parties to the proceedings.
12. When should I make an application for a TAL?
Applications should be made promptly and sufficiently far in advance of the relevant trial or hearing once it is known that a trial or hearing will be required.
13. Why does a copy of the application need to be copied to the other parties?
The other parties to the proceedings are given seven days to respond to the application for a TAL. That time period starts to run from the date on which you file the application with the court and serve a copy on the other parties.
The other parties can either object to the application (in which case they must give their reasons) or they can indicate they do not object to it or they can say that they agree with the application.
14. What happens once the application has been filed?
After you file the application, the administrative staff at the Court will check that the fee has been paid, that you have signed and dated the application and that the practising certificate and CV of the person to whom the TAL would be granted are enclosed. It will also check that you have sent a copy of the application to the other parties.
Once seven days (starting with the day after the date of filing) have passed, the application is passed to the First Deemster for consideration. Any response from the other parties will also be passed to the First Deemster.
The First Deemster will then consider the application and whether the grounds for the granting of a TAL are met.
In exceptional cases, the First Deemster may also ask you and / or the other parties for more information.
15. What happens when the First Deemster has made a decision?
When the application has been considered by the First Deemster, he or she will either approve or reject the application.
If the application is approved, you will receive a TAL. This will identify the person to whom the TAL is issued (“the Temporary Advocate”) and the proceedings to which the TAL relates. The other parties will also be notified.
At the same time, you will receive a letter setting out the steps that the Temporary Advocate will need to take before they can act on your behalf. Most importantly they will need to take an oath to officially be sworn in as an Advocate. Further information about this can be obtained by the Temporary Advocate from the Court.
The Law Society will also be provided with a copy of the TAL for their records.
If the application is rejected, all parties will be informed.
The First Deemster may, where it is felt necessary and appropriate, provide reasons for the decision in writing to the parties. These decisions are usually then published online (the link to the Isle of Man Judgments website can be found here). Searching for ‘Temporary’ in the search function will bring up a list of decisions and this may be of further assistance if you are intending to make an application for a TAL.
16. Can the decision of the First Deemster be challenged?
Yes. Section 17(3) of the Act enables a person who does not agree with the decision of the First Deemster to seek a review of it by the Judge of Appeal. You must seek a review within 14 days of the First Deemster’s decision.
17. If my application was unsuccessful, can I submit a new application?
Yes, but it will only be considered upon a material change of circumstances or the availability of fresh evidence not reasonably available previously. It is therefore important to ensure your initial application is fully supported with relevant evidence.
18. How long does a TAL last for?
A TAL will generally last for the duration of the proceedings that it relates to; however, if those proceedings continue for 12 months or more from the date of the TAL, you must apply to the court to renew the TAL.
The application for renewal should be made before the expiry of 12 months from the date of the TAL and you will need to pay a renewal fee. The Court Services Fees Order sets out details of the applicable fee, the up to date version of which can be found here
19. What is a ‘Direct Access’ Barrister?
Ordinarily, a Barrister is instructed by a solicitor on behalf of the solicitor’s client. A Direct Access Barrister is an individual who has been authorised to take instructions directly from a party to proceedings without having to receive them through a solicitor.
20. Do I need to instruct a ‘Direct Access’ Barrister if I want them to have a TAL?
There is no requirement in the Isle of Man for a Barrister to be direct access registered to benefit from a TAL. However, if you want to instruct a Barrister directly who is not Direct Access registered they may not feel able to take instructions from you or undertake the work necessary. You should check with the individual Barrister. It may be quicker, and provide more certainty, to instruct a Direct Access Barrister.
21. Where do I find a list of ‘Direct Access’ Barristers?
You can search for Direct Access Barristers using the Direct Access Portal found here: https://www.directaccessportal.co.uk/