The CPR's Fig Leaf and the Commercial Court's Judicial Veil: Procedural Formalism in Practice (Part II)

Diego F. Soto-Miranda
May 19
2 min read

By Diego F. Soto-Miranda

Introduction

In Part I, I explored how procedural formalism under CPR 3.9 and 3.10 often cloaks substantive justice behind ritualistic adherence to rules. Here in Part II, I want to delve deeper—examining how the Commercial Court's approach to case management, sanctions, and discretion further perpetuates this judicial veil. The question remains: are we serving justice, or merely preserving appearances?

Case Management: Control or Constraint?

One of the cornerstones of the CPR is active case management. On paper, it’s designed to promote efficiency, minimise delay, and reduce unnecessary costs. But too often, I find that the judiciary’s stringent control over case timelines transforms into a rigid framework where litigants must navigate procedural traps.

Miss a deadline? Face sanctions. Attempt to amend pleadings late? Brace for judicial disapproval. The focus shifts from substantive fairness to procedural discipline, leaving little room for nuance.

Sanctions and Discretion: Where’s the Balance?

The judiciary has wide discretion when it comes to sanctions. Yet, the culture surrounding CPR enforcement has, in my view, tilted toward punitive rigidity rather than balanced pragmatism.

Relief from sanctions applications under CPR 3.9 often hinge on whether non-compliance is seen as trivial or significant. But is it fair to treat all procedural breaches equally, regardless of whether they materially affect the case? When courts default to sanction-first thinking, justice risks becoming secondary to compliance.

Transparency and the Judicial Veil

The Commercial Court is often lauded for its efficiency and sophistication, but transparency around judicial decision-making can sometimes be lacking. Decisions may be technically correct, but the rationale often disappears behind procedural formalism.

In my experience, litigants—particularly those without deep pockets—may feel blindsided by a focus on procedural perfectionism over substantive outcomes. The judicial veil persists, and it’s not always clear whether it serves litigants or the institution.

Reclaiming Substantive Justice

What’s needed, I believe, is a recalibration. Case management should be flexible enough to account for human error, resource constraints, and the realities of complex litigation. Sanctions should reflect the actual harm caused by non-compliance, not act as an automatic punishment.

Ultimately, the CPR should be a tool, not a trap. Judges have the discretion and the authority to lift the veil when necessary—ensuring that procedural rules facilitate justice, rather than obscure it.

Diego F. Soto-Miranda is a barrister specialising in commercial, defamation and human rights law. For further insights or to discuss representation, get in touch via email.