The CPR's Fig Leaf and the Commercial Court's Judicial Veil: Unveiling Procedural Formalism (Part I)

Diego F. Soto-Miranda
May 12
2 min read

By Diego F. Soto-Miranda

Introduction

Procedural rules exist to guide litigation efficiently and fairly, but what happens when these rules become a veil, shielding deeper issues of substantive justice? In this reflection, I revisit the Commercial Court's use of the Civil Procedure Rules (CPR) and consider how formalism, particularly under CPR 3.9 and 3.10, can sometimes obscure rather than illuminate the pursuit of justice.

The Tridentian Fig Leaf: CPR 3.9 and Relief from Sanctions

Let’s start with CPR 3.9—the rule governing relief from sanctions. In theory, it’s designed to ensure compliance while offering flexibility when breaches occur. Yet, I often observe how the courts apply this rule with an almost sacramental reverence, focusing on procedural purity rather than the realities facing litigants.

The two-stage test laid down in Denton v TH White Ltd—examining the seriousness of breach, reasons for default, and all circumstances—has become a litmus test of judicial discretion. But in practice, I question whether too much weight is placed on procedural transgressions, creating a ritualistic formality that sometimes overshadows substantive justice.

CPR 3.10: The All-Purpose Judicial Safety Net

Similarly, CPR 3.10 acts as a judicial safety valve, allowing courts to rectify procedural errors where the rules are silent. However, its application often highlights a tension: do we prioritise rigid adherence to procedure, or do we allow common sense and fairness to prevail?

Time and again, I’ve seen CPR 3.10 invoked not to correct genuine errors, but to paper over inconsistencies that stem from overzealous formalism. The judicial veil, in this context, serves less to clarify justice and more to preserve institutional rigidity.

The Underlying Question: Are We Losing Sight of Justice?

Ultimately, my concern is that the Commercial Court’s procedural frameworks, while necessary, risk becoming ends in themselves. The language of "compliance" and "sanction" dominates, but at what cost?

Litigation is not a theological exercise. Our primary responsibility as legal professionals—and indeed, the judiciary—is to ensure access to justice, not to engage in procedural sanctification.

Looking Ahead

In Part II, I’ll explore how this formalism affects case management decisions and the broader implications for commercial litigants. My aim is not to dismiss the importance of rules, but to encourage a more transparent, substantive approach that keeps justice—not ritual—at the heart of litigation.

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.