MORE ON SKELETON ARGUMENTS: DO THEM PROPERLY OR YOU DON'T GET PAID (THE TRIQUEL)

November 25, 2014 · by · in Appeals, Civil Procedure, Costs, Written advocacy

For the third time in the past few months Jackson L.J. has spoken out against over-lengthy skeleton arguments. The costs of preparing those skeletons have been disallowed on each occasion. This is what happened in Inplayer Ltd -v- Thorogood [2014]  EWCA Civ 1511

THE CASE

The defendant appealed against orders committing him to prison on the grounds that he had not been informed beforehand of the contempts and he had not been informed of his right not to give evidence.  He had been unrepresented when faced with a criminal charge.

THE SKELETON ARGUMENT

The critique of the skeleton can be seen very early on in the judgment

33. It is not easy to isolate the real issues in this appeal from the lengthy and non-compliant skeleton argument prepared by Mr Adam Tear, who represents Mr Thorogood. At the start of the appeal therefore the court in discussion with Mr Tear identified his four essential complaints.

MORE FULL BLOWN CRITICISM OF THE SKELETON

The Court allowed the appeal but devoted a specific section to the nature of the skeleton argument.

52. I have protested previously about the poor quality and excessive length of some skeleton arguments in this court. On occasion the Court of Appeal has deprived successful parties of the costs of preparing their skeletons. So far, unfortunately, this message has failed to reach the profession. Mild rebukes to counsel and gentle comments in judgments have no effect whatsoever. Therefore, with regret, I must speak more bluntly.

53. The rules governing skeleton arguments for the Court of Appeal are contained in paragraph 5 of Practice Direction 52A and paragraph 31 of Practice Direction 52C. (Paragraph 32 deals with supplementary skeleton arguments.) These rules do not exist for the benefit of judges or lawyers. They exist for the benefit of litigants, namely (a) to ensure that their contentions are presented most effectively to the court and (b) to enable the court to deal with its caseload expeditiously, bearing in mind that there is always a queue of appellants and respondents waiting for their matters to be heard. 

54. In essence an appellant’s skeleton should provide a concise, user friendly introduction for the benefit of the three judges who will probably have had no previous involvement in the case. The skeleton should then set out the points to be argued clearly and concisely, with cross-references to relevant documents and authorities, in the manner prescribed by Practice Direction 52A paragraph 5. The skeleton should not normally exceed 25 pages. Usually it will be much shorter. In a straightforward case like this the skeleton argument would, or at least should, be much less than 25 pages.

55. As anyone who has drafted skeleton arguments knows, the task is not rocket science. It just requires a few minutes clear thought and planning before you start. A good skeleton argument (of which we receive many) is a real help to judges when they are pre-reading the (usually voluminous) bundles. A bad skeleton argument simply adds to the paper jungle through which judges must hack their way in an effort to identify the issues and the competing arguments. A good skeleton argument is a real aid to the court during and after the hearing. A bad skeleton argument may be so unhelpful that the court simply proceeds on the basis of the grounds of appeal and whatever counsel says on the day.

56.The appellant’s skeleton argument in this case does not comply with the rules. It is 35 pages of rambling prolixity through which the reader must struggle to track down the relevant facts, issues and arguments.

57. Although the successful appellant in this case is entitled to his costs, he will not recover the costs of the skeleton argument against the respondents to the appeal.

THE MESSAGE HAS FAILED TO REACH THE PROFESSION

Well its not for want of  trying. Try reading:-

 

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