PROVING THINGS 144: THAT TEMPTATION TO PUT MATTERS IN THE SKELETON THAT AREN’T ESTABLISHED BY THE EVIDENCE: ALSO – THE POWER OF LISTS

We have looked before at attempts to use a skeleton argument to introduce evidence (often made in desperation to be fair). An example of this can be seen in a short passage in the judgment in Schettini v Silvestri & Ors [2019] EWCA Civ 349.

THE CASE

The appellant was appealing an order that he pay £100,000 into a designated account to fortify an undertaking given in relation to an injunction.

THE SKELETON IN SUPPORT

Lord Justice Lewison observed that there had not been any objection to the payment made before the judge at first instance.

  1. In addition, there is no evidence at all that provision of security in that amount would stifle the claim. Avv Schettini does not make that assertion in either of the witness statements before the court. It is surprising, therefore, that that assertion was made in the skeleton argument served on his behalf.

A LIST OF MATTERS

The judgment, also provides an example of how a simple list of matters can, more or less, demolish a case. Lewison L.J. reviewed the matter and concluded.

    1. What is clear from this is:
i) Avv Schettini was represented by experienced counsel.

ii) Counsel for Avv Schettini had ample advance notice that fortification was on the agenda.

iii) He had at least two opportunities in the course of the hearing to deal with the point; and a further week between the conclusion of the hearing and the delivery of judgment (during which he was asked by the judge to take instructions) in which to make further submissions.

iv) There was no active opposition to the principle of fortification, even if it might go too far to say that the principle was conceded.

v) It was not disputed that fortification could be ordered in respect of costs.

vi) It was not suggested to the judge that to require fortification of the cross-undertaking was impermissibly to require security for costs by the back door.

vii) The judge was not asked to undertake the three-stage process required by Energy Venture Partners Ltd v Malabu Oil and Gas Ltd.

viii) The sum of £100,000 was not intended to be the whole costs of the action, but the potential costs in dealing with the injunction.

ix) It was not suggested to the judge, post-judgment, that the sum of £100,000 was excessive or that it would stifle the claim.

x) In his judgment the judge said that he would hear counsel on the form of order. It was not suggested that the grant of the injunction be conditional on the provision of fortification; or that the judge should order fortification, as opposed to dealing with fortification by the giving of an undertaking.

  1. It is difficult therefore not to conclude that, following consultation with his counsel, Avv Schettini considered that the undertaking to fortify was a price worth paying.

AND A FINAL LIST…

The judgment goes on:-

    1. This, then, is a case in which:
i) Avv Schettini did not argue, either at the original hearing or on the application for discharge, that the undertaking was wrong in principle or excessive in amount.

ii) Thus, none of the grounds of appeal were advanced before the judge.

iii) If they had been, the judge’s ultimate decision would not necessarily have been any different.

iv) There is no evidence that the undertaking will stifle the action.

v) The undertaking recorded in HHJ Pelling’s order against which he wishes to appeal no longer exists, because it has been discharged.

vi) The undertaking which currently binds Avv Schettini is that which was offered to and accepted by Mr Caddick.

vii) There has been no change of circumstance since the undertakings were given.

  1. In my judgment, in addition to the general objection to an appeal against an undertaking given to the court, the particular facts of this case make the appeal unsustainable. I would dismiss it.