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In the first place, the methodology is such that it is likely to be subjected to misuse.
The introduction of an overriding objective consisting of broad concepts, expressed in
general terms, but apparently endowed with "overriding" qualities, is likely to give
rise to misguided arguments and interlocutory applications. The learned editors of the
current edition of the White Book acknowledge this and, in a telling passage,
describe how use of the overriding objective has sometimes been distorted.
(a)
Given the breadth of the overriding objective :-
"It is probably true to say that, in almost any circumstance in which the court exercises a
power given to it by the CPR, it would be possible to justify (at least in part) the particular
manner in which the power is exercised in the light of one or other of the aspects of the
overriding objective as listed in r.1.1(2)."
(b)
It is therefore unsurprising that it may often be the case that :-
"...... the particular objectives will be used selectively and merely for the purpose of giving
added weight to particular exercises of powers given to the court by the CPR and to preferred
interpretations of rules. ......"
(c)
Indeed :-
"...... in some cases advocates have urged that the dominant if not exclusive considerations
for resolving certain procedural issues were to be found in CPR 1.1."
(d)
As the learned editors point out, such over-reliance on the overriding objective
has sometimes led to absurd results, as in Law v St Margarets Insurances Ltd,
where the overriding objective was used to support the wholly unsustainable
outcome that a default judgment entered against a wrong defendant should not
be set aside.
(e)
Some of the dangers are summarised as follows :-
"Premature and unnecessary recourse to the overriding objective may lead to inadequate legal
analysis of important procedural issues (thus hindering the proper development of the law), to
radical provisions in the CPR not being consistently applied as intended, and to an erratic
‘palm tree justice' approach to interlocutory work (leading to inconsistent treatment of like
situations) ......"
Notes
White Book 1.3.2.
[2001] EWCA Civ 30, 18 January 2001.
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