Intention, Action and Outcome: The Use of Purpose Clauses in Anglo-American Civil Procedure.

Abstract

This paper looks at the operation of purpose clauses in the context of English and American civil procedure.

How may the operation of purpose clauses be understood?

The operation of a purpose clause requires us to understand the intention behind the clause, the action required to effect the purpose and the outcome which is to be achieved. Intention comprises both the purpose which is chosen and the reasons behind that choice. Action, from the judicial perspective, involves both interpretation of the rules and the discretionary application of the rules particularly in the context of case management. If intention and action are not in alignment then the outcome will not fulfill the purpose. Even where intention and action are in alignment the desired outcome may still be frustrated.

Does having a separate purpose clause in a set of procedural rules assist in the actual fulfillment of the said purpose?

In theory it ought to do so, as having a specified goal should indicate, at the least, the court’s direction of travel and the specific meaning or application which is required. However in practice, matters are not so simple: for purposes tend to be expressed generally without sufficient binding or guiding detail; the emphasis upon case management gives much scope for the general purpose to be defeated by the quantity or quality of the preparatory steps which an individual judge may require; and the judge may bring to the exercise of interpretation and application an intention which, is distinct from the intention behind the relevant set of rules. Is the goal set out in the purpose clause be preferred over the plain meaning of the words of a specific procedure?

The approach evidenced in the responses to the Field Code rule 3, Federal Rule of Civil Procedure 1 and Civil Procedure Rule 1.1 suggests that the reverse is true. The particular tends to triumph over the general, a situation that relates, in part, to the intention or underlying philosophy which is brought by the judge performing the task of interpretation. In America, the approach of Scalia J. makes this difficulty very apparent. In England, the epistemological variance between the judges’ own intentions and the intentions of the CPR was such as to create difficulty under the early CPR, as Sorabji has shown.

Does the court assume that, ordinarily, the detailed procedures contained throughout the rules fulfill the purpose set out in the purpose clause without the need for adjustment?

The general approach of the courts in England and in the federal courts in the United States is to prefer the detailed language of specific rules over the more general language of the relevant purpose clause. In America, Scalia J. exemplifies the narrow approach to construction. This approach proceeds upon on the basis that it is the job of a court to interpret the rules and not to infringe on the province of the legislator. In England, although, in theory, a court may choose to develop new procedure (which is subsequently adopted by the rules committee), in practice it is for champions (such as Woolf and Jackson) to innovate and for the rules committee to implement which innovations they think appropriate.

Is a purpose clause to be treated as yet another rule of construction to be applied where the meaning is not clear?

In most cases, this is the course taken both in England under the CPR and, in America, under the FRCP. There is a marked tendency on both sides of the Atlantic for the courts to be conservative in their handling of purpose clauses relating to civil procedure. In effect, this means that the specific detail of rules triumphs over the more general language of the purpose clause. In both England and America the judges may bring their own theories of justice to the interpretation of the rules in a way which may prevent the purpose of the rules from being realised effectively. Scalia J.’s approach to interpretation is based upon a theory of meaning which is turn is built upon a theory of the role of the judiciary. In England, the early reception of the CPR highlights the prevalence of the justice on the merits theory even when it had, officially at least, been rendered redundant. Current attempts to apply the rules are suggestive of a theory of accuracy which continues to impact not just the interpretation of the rules but also the way in which they are applied.

Keywords: purpose clauses, overriding objective, Field Code, Federal Rules of Civil Procedure