DRAFTING A SKELETON OR WANT TO SERVE AN ADDITIONAL SKELETON ARGUMENT? THEN YOU HAD BETTER READ THIS
We have looked before at judicial complaints about the length and extent of skeleton arguments. Similar grievances can be seen in the judgment of the Court of Appeal earlier this week in Tchenguiz -v- Director of the Serious Fraud Office  EWCA Civ 1333. Unlike, perhaps, the skeleton in question, the judgment is succinct enough to be set out in full.
Lord Justice Jackson:
- This is an application made pursuant to paragraph 32 of Practice Direction 52C to rely on a supplementary skeleton argument for the purposes of the present appeal. The context in which this application is made is an appeal by the claimant against an order of Mr Justice Eder in the exercise of his discretion under Civil Procedure Rules, rule 31.22.
- The rules governing skeleton arguments for use in the Court of Appeal are set out in paragraph 5 of Practice Direction 52A and paragraph 31 of Practice Direction 52C. Paragraph 5 of Practice Direction 52A states that the purpose of a skeleton argument is to assist the court by setting out as concisely as practicable the arguments upon which a party intends to rely. The paragraph goes on to require that the skeleton argument should be concise; it should both define and confine in the areas of controversy; it should not include extensive quotations from documents or authorities. Turning to Practice Direction 52C, paragraph 31 requires that the skeleton argument should not normally exceed 25 pages.
- These rules exist for a serious purpose, namely to enable the Court of Appeal to deal with its business in a timely and efficient manner. In the present case, there has been substantial non-compliance on the part of the appellant. The appellant’s initial skeleton argument was prolix and it ran to 47 pages. The appellant now seeks to serve a supplementary skeleton argument 34 pages long, accompanied by an appendix which is 15 pages long. There is a substantial degree of overlap between the two skeleton arguments. It would be time-consuming in the extreme to settle down and identify which passages in the supplementary skeleton argument are genuinely new points and which are merely rephrasing assertions made in the original skeleton argument. It seems to me that all the points dealt with in the supplementary skeleton argument were perfectly foreseeable. In so far as they depart from the original skeleton, they could and should have been dealt with at the outset.
- If the appellant felt, on reflection, that the original skeleton argument on which he obtained permission to appeal was defective, the sensible course would have been to prepare a substitute skeleton argument which complied with the rules and to furnish that to the court and the other parties as soon as practicable after the grant of permission. There would then have been a single skeleton argument, compliant with the rules, which set out concisely and helpfully the points which the appellant wished to argue. That did not happen. Instead, one week before the hearing, the appellant served a lengthy supplementary skeleton argument.
- The question which now arises is what we are to do in relation to the supplementary skeleton argument, which adds to an original skeleton argument that is already of excessive length. As I say, skeleton arguments of this volume and repetition do not assist the court in its task of resolving the issues between the parties. Doing the best that I can, it seems to me that there is material in paragraphs 28 to 49 of the supplementary skeleton argument which ought to be retained and which should preferably have been included in the original skeleton argument.
- The order which I would propose, subject to the views of my Lady and my Lord, is this. The appellant be permitted to rely upon paragraphs 28 to 49 of the supplementary skeleton argument, but not upon the rest of that document.
- Furthermore, I would indicate now that, in view of the non-compliance with the rules, whatever may be the outcome of this appeal, the appellant will not be permitted to recover his costs of either skeleton argument.
Lady Justice Sharp:
- I agree with the order proposed by my Lord for the reasons he gives. There has been a gross non-compliance with the rules in this case. It should be clearly understood (1) that the rules apply to all classes of litigation and there is no exception for commercial litigation and (2) that length obscures the points which are germane to the resolution of an appeal, rather than assisting in their determination.
Lord Justice Vos:
- I agree with both judgments. It is to be pointed out that this is an appeal from a concise 11-page judgment of Mr Justice Eder which itself sets out carefully the reasoning for his decision. In those circumstances, the idea that 81 pages of appellant’s skeleton argument can or should be necessary is, in my judgment, surprising.
- I would like particularly to endorse the proposition that the rules are made as much for Commercial and Chancery cases as they are for other cases. It is just as important to put one’s argument concisely in a complex Commercial or Chancery case as it is in any other kind of case. It is very difficult for the Court of Appeal to deal with the dispatch of its business if it is faced with excessively lengthy skeleton arguments. What is required is a careful and concise summary of the points that are intended to be addressed.
- Here, the main argument put forward by the appellant for filing a supplemental skeleton was to respond “to the allegation made by the SFO and HMP [the respondent and the intervener] that RT [Mr Tchenguiz] has failed to identify why the 22 documents at issue on the appeal are ‘critical’ or ‘decisive’ to the outcome of the Guernsey appeal”.
- It was, I would suggest, obvious at the outset of this appeal that the relevance of the 22 documents had to be made clear if the appeal was to get air speed. In those circumstances, the suggested justification for filing a supplemental argument could not be supported.
- I agree with my Lord, however, that the passages at paragraphs 28 to 49 of the supplemental skeleton assist in identifying the arguments that the appellant wishes to adopt in relation to the relevance of the 22 documents, but I do not accept that those paragraphs could not have been included in the original skeleton in a far more concise format. That said, I too agree with the orders proposed.