PICKING UP BAD CITATIONS: & SKELETON ARGUMENTS – STILL TOO LONG:

In an afternote to his judgement in Commercial Management (Investments) Ltd -v- Mitchell Design and Construct Ltd [2016] EWHC 76 (TCC) Mr Justice Edwards-Stuart added his voice to the many judges who have commented on the excessive length of skeleton arguments and over-citation of cases.

THE JUDGMENT

“Afternote

1. In this case the skeleton arguments submitted on behalf of two of the parties ran to about 20 or so pages. The skeleton argument submitted on behalf of the third ran to over 70 pages. Allowing for the fact that the latter adopted a larger font and/or greater line spacing than the other two, it was still about two and a half times as long. The ability to navigate it was not assisted by the fact that it had no index.

2. Paragraph 15.2.1 of the TCC Guide provides that:

“In general terms, all opening notes should be of modest length and proportionate to the size and complexity of the case.”

1. In the context of this trial of these preliminary issues, I consider that a skeleton argument running to more than about 25 pages, assuming the usual spacing and font size, is not of modest length. The offending skeleton argument in this case exceeded this limit by a comfortable margin. There is a reason for this provision, which is not simply to save time and paper. More fundamentally, it is also the case that once a skeleton argument runs to more than about 25 pages it is usually because it is over discursive, making it difficult for the reader to identify the real issues and to follow the argument. Also it makes it more difficult for the reader to find his or her way quickly to the part of the skeleton argument which is dealing with the point currently under consideration (particularly if it has no index).

2. A related point is the over citation of authority. The bundles of authorities for this hearing contained about 40 reports – albeit with some duplication. I have found it necessary to refer to only a handful of them. I commend practitioners to the observations of Stuart-Smith J at paragraphs 19 and 20 of his judgment in Persimmon Homes Ltd v Ove Arup & Partners Ltd [2015] EWHC 3573. In saying this, I do not wish to be overcritical: of course counsel will wish to err on the side of caution and will be naturally averse to the risk of criticism if a relevant authority is not cited. I fully understand that. I would simply encourage counsel not to cite several cases where one or two will do, and not to cite authorities which simply illustrate the application of a well-known principle to particular facts (unless those facts are of particular relevance to the case under consideration) or which are examples where the conclusion contended for in the present case has been reached in different circumstances.”

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