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Skeleton arguments "not rocket science", says Court of Appeal

26-November-2014
26-November-2014 16:26
in General
by Admin

Counsel gets it in the neck!

Inplayer Limited (Formerly Invideous Limited) v Thorogood [2014] EWCA Civ 1511

In a judgment handed down yesterday, the Court of Appeal has taken an opportunity to offer some frank guidance to counsel on the proper approach to drafting skeleton arguments.

Giving the lead judgment, Jackson LJ, who had “protested previously about the poor quality and excessive length of some skeleton arguments in this court”, regretted that “so far, unfortunately, this message has failed to reach the profession”. “Mild rebukes to counsel and gentle comments in judgments” had “no effect whatsoever”. It was “therefore, with regret” that Jackson LJ considered it necessary to “speak more bluntly.”

The rules on skeletons “do not exist for the benefit of judges or lawyers”, but rather “exist for the benefit of litigants” in that they ensure the effective presentation of their contentions to the court and enable the court to deal with its caseload expeditiously.

It is our opinion that the CPR and HM Court Service is operated for the benefit of litigants at the cost of the taxpayer. A public service that should be open to all disputes efficiently run and serving the public.

3 things a skeleton should do

Jackson LJ considered that an appellant’s skeleton argument should do 3 things:

  1. Provide “a concise, user friendly introduction”.
  2. “Set out the points to be argued clearly and concisely, with cross-references to relevant documents and authorities”, as prescribed by Practice Direction 52A paragraph 5. It should “not normally exceed 25 pages” and would “usually […] be much shorter”.
  3. Constitute a “real aid to the court during and after the hearing”.

Jackson LJ expressed surprise at the inability of some counsel to draft such skeleton arguments: “As anyone who has drafted skeleton arguments knows”, he observed, “the task is not rocket science” and “just requires a few minutes clear thought and planning before you start”. Where counsel fell short, bad skeletons simply added “to the paper jungle through which judges must hack their way in an effort to identify the issues and the competing arguments.”

The author of the skeleton in question suffered the ignominy of having his skeleton described as “35 pages of rambling prolixity” and his client, the successful appellant, although entitled to his costs, was denied recovery of the costs of the skeleton argument in accordance with Practice Direction 52 paragraph 5 which provides at 5.1(2) that:

      A skeleton argument must–

  • be concise;
  • both define and confine the areas of controversy;
  • be set out in numbered paragraphs;
  • be cross-referenced to any relevant document in the bundle;
  • be self-contained and not incorporate by reference material from previous skeleton arguments;
  • not include extensive quotations from documents or authorities.

It further provides at 5.1(4) that:

      Where it is necessary to refer to an authority, a skeleton argument must –

          (a) state the proposition of law the authority demonstrates; and

          (b) identify the parts of the authority that support the proposition.

However, the author of the document at the centre of his Lordship’s wrath (as opposed to mild rebuke) was not counsel at all! A case of mistaken identity!

The Bar prides itself on detailed training courses which teach barristers how to settle precise skeleton arguments and in all but a few cases the standards of counsel are high due to this bespoke training developed specifically for specialist advocates who work on their feet. This is a key reason why solicitors brief counsel.

Touching a nerve

Jackson LJ appeared to have a keen sense of the attitude of the Court of Appeal to skeleton arguments, as Lewison LJ simply said I agree and I specifically endorse paragraphs [52] to [57] [which dealt with the skeleton argument] of Jackson LJ’s judgment” and Treacy LJ agreed with both judgments. The decision is a timely reminder to all lawyers that when it comes to skeletons, they should be skeletal.

 

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