USELESS BUNDLES; LENGTHY SKELETONS AND JUDICIAL IRE: THE COURT OF APPEAL RUES INABILITY TO IMPOSE "OLD FASHIONED" SANCTIONS

This is not the first time CLB has commented on judicial complaints about over-long skeletons and poorly thought out bundles.  These points are made again by the Court of Appeal in Caldero Trading -v- Leibson [2014] EWCA Civ 935. The court made pointed comments about the number of the bundles and length of the skeleton arguments 

Rimer L.J.

1. The appeal was listed for three days, apparently because it was foreseen that we would be treated to a wide-ranging review of the evidence before the judge. In the event, the argument lasted for only about four hours. We were presented with some 17 lever arch files of documents and authorities. Only one authority was actually cited to us and I doubt if we were referred to more than about 24 of the thousands of pages that were copied. I regarded the skeleton arguments on both sides as too long, the appellants’ (which included a schedule and four appendices) occupying 72 pages, and Caldero’s (with no schedule, but also four appendices) 67 pages. The requirements of CPR Practice Direction 52C, paragraph 31, are that skeleton arguments should not ‘normally’ exceed 25 pages. Caldero, however, defended the length of its skeleton by saying that this was not a ‘normal’ appeal, and that it had answered the grounds of appeal in 22 pages, with the bulk of the balance devoted to its cross-appeal, which in the event formed no part of its oral argument to us. I nevertheless still regard both skeletons as having been too long. It is a travesty to call such written submissions ‘skeleton’ arguments.

Aikens L.J.

1. I also wish to endorse what Rimer LJ has said at [8] above. There are far too many appeals where the parties simply copy all the trial bundles without thinking out what is actually needed for the appeal hearing. This is not only costly and wasteful but it demonstrates that the parties have not actually thought about the issues on the appeal and how to deal with them. In this case the original 50 trial bundles were reduced to 17, but as Rimer LJ has pointed out, very few documents were actually referred to before us. Furthermore, there was no attempt to produce a “core bundle”, which at least would have helped. The authorities bundles were also produced without any proper thought as to what actually might be needed in an appeal on fact, not a point of law. The so-called “skeletons” of both sides were disgracefully long and showed a disdainful regard for CPR PD 52C paragraph 31. In my view there was nothing in this appeal that required that the “normal” length of 25 pages to be exceeded by either side. It also seems that the parties had not given sufficiently serious thought as to how long the appeal would take. It is the duty of both parties to consider the time estimate, not just the appellants. As I said, somewhat ruefully, in Standard Bank plc v. Via Mat International Ltd[2013] EWCA Civ 490 at [29] – [30], the punishment for prolix pleadings (and nowadays “skeleton arguments”) that was imposed on the miscreant in Mylward v. Weldon (1596) Tothill 102 ([1595] EWHC Ch 1) may no longer be available today. However, a wholesale failure to comply with the Practice Direction on written submissions and, I would add, failure to use common sense in working out more precisely what bundles are needed for the appeal, may well lead to strict adverse costs orders, which is something we shall have to consider carefully in this case

WANT TO KNOW THE SANCTIONS IN MYLWARD -v- WELDON?

The penalty for using six score sheets of paper rather than sixteen sheets was severe.

“FORASMUCH as it now appeared to this Court, by a report made by the now Lord Keeper, (being then Master of the Rolls,) upon consideration had of the plaintiff’s replication, according to an order of the 7th of May anno 37th Reginæ, that the said replication doth amount to six score sheets of paper, and yet all the matter thereof which is pertinent might have been well contrived in sixteen sheets of paper, wherefore the plaintiff was appointed to be examined to find out who drew the same replication, and by whose advice it was done, to the end that the offender might, for example sake, not only be punished, but also be fined to Her Majesty for that offence; and that the defendant might have his charges sustained thereby; the execution of which order was, by a later order made by the late Lord Keeper the 26th of June, Anno 37th Reginæ, suspended, without any express cause shewed thereof in that order, and was never since called upou until the matter came to be heard, on Tuesday lost, before the now Lord Keeper; at which time some mention was again made of the same replication; and for that it now appeared to his Lordship, by the confession of Richard Mylward, alias Alexander, the plaintiff’s son, that he the said Richard himself, did both draw, devise, and engross the same replication; and because his Lordship is of opinion that such an abuse is not in any sort to be tolerated, proceeding of a malicious purpose to increase the defendant’s charge, and being fraught with much impertinent matter not fit for this Court; it is therefore ordered, that the Warden of the Fleet shall take the said Richard Mylward, alias Alexander, into his custody, and shall bring him into Westminster Hall, on Saturday next, about ten of the clock in the forenoon, and then and there shall cut a hole in the myddest of the same engrossed replication (which is delivered unto him for that purpose), and put the said Richard’s head through the same hole, and so let the same replication hang about his shoulders, with the written side outward; and then, the same so hanging, shall lead the same Richard, bare headed and bare faced, round about Westminster Hall, whilst the Courts are sitting, and shall shew him at the bar of every of the three Courts within the Hall, and shall then take him back again to the Fleet, and keep him prisoner, until he shall have paid 10l. to Her Majesty for a fine, and 20 nobles to the defendant, for his costs in respect of the aforesaid abuse, which fine and costs are now adjudged and imposed upon him by this Court, for the abuse aforesaid.“