Enforcement of Process Requirements: A Search for Solid Grounds

The extent to which judges in the American federal system and in England and Wales respond to sanctions, in their codes of civil procedure, for non-compliance with those rules, varies according to which of two ‘philosophies of justice’ are prevalent in the judicial culture. Taking as a starting point the application of the ‘ultimate’ sanction, that of exclusion from the trial itself, in the two jurisdictions, the article first draws out the features of the two philosophies, finding them surprisingly similar in both jurisdictions. The article thereafter proposes that the choice of philosophy ought not to rest with individual judges but with the system, as structured in rules, thus suggesting a limited formalist approach to civil procedure.