News and Views Issue 5: Fall 2002
Why are There Rules of Court?
Gordon Turriff *
Lawyers who are also baseball fans love a short article called "The Common Law Origins of the Infield Fly Rule" [ 1 ]. It examined the development of a rule which stops the fielding team from using its own intentional error to make a double play. This rule was needed "to preserve the spirit of the game" where "moral force" alone would not ensure that teams played fairly.
We have rules of court for the same reason. They "regulate and prescribe the practice and procedure" [ 2 ] of courts because without rules people in court proceedings would not necessarily treat each other properly. This is human nature. Litigation is adversarial and litigants are opponents, not partners, in the search for truth. Individual senses of injustice, or the desire to win would, in many cases, outstrip altruism. With no rules, fair play would lose out. So, like the rules of baseball that describe, for example, when a player can be added to a team's line-up or what happens if a pitcher throws intentionally at a batter's head, procedural rules have been devised to instruct litigants about how to conduct themselves in a fair manner.
To that end, literally hundreds and hundreds of rules of court have been developed in order to secure the fundamental premise that parties in litigation must treat their opponents fairly. At first courts produced rules to control their own proceedings. Later, beginning in England in the 1830's, legislatures helped out. Rules now govern every step in litigation and every manner of litigation behaviour. How could it be otherwise? Courts must preserve their integrity, even more so than baseball. This has to be, because courts dispense justice. They must not permit anyone to act unfairly. And they have to be able to stop people from using court processes abusively.
Rules of court, especially rules fixed by legislatures, who have to allow courts
their independence, are not a complete code for litigation conduct [ 3 ].
But no matter who makes them, rules do govern court proceedings, always with fairness
as the ultimate end. Rules produce order so that steps in the litigation process
occur logically. Rules permit courts to condemn and to punish oppressive conduct.
One useful tool for which there are many little rules is the power of courts to
order that costs be paid or to order that they cannot be recovered. Costs are
a contribution towards litigation expense. Most people will act fairly if they
know their pocket books will be affected if they do otherwise.
- (1975) 123 U. of Penn. L. Rev. 1474, at 1476. Return to Article
- I.H. Jacob, "The Inherent Jurisdiction of the Court"
[1970] 23 Current Legal Prob. 23, at 34. Return to Article
- Ibid., at 34. See also Baart v.
Kumar (1985) 66 B.C.L.R. 61 (C.A.). Cf. Brown v. Lowe
(2002) 97 B.C.L.R. (3d) 246 (C.A.). Return to Article
* Mr. Turriff is counsel with Stikeman Elliott in Vancouver. He is a Bencher of The Law Society of British Columbia, a founding member and director of the British Columbia Law Institute and has been, for 15 years, one of three co-editors of the British Columbia Annual Practice.