FILE A SKELETON ARGUMENT – IT IS MANDATORY

April 5, 2017 · by · in Civil Procedure, Written advocacy

Many of the posts about skeleton arguments on this blog have been about content (usually length),  The surprising aspect of R -v- Secretary of State for the Home Department [2017] EWHC 639 (Admin) is that both sides decided not to file skeleton arguments. This was done in the face of a mandatory obligation to do so. The judgment emphasises the mandatory nature of the obligation to file skeletons (in some cases) and the assistance they can give the court.

THE CASE

The applicant was seeking judicial review of a refusal of an asylum claim. The review was heard by Sara Cockerill QC sitting as a High Court judge.

THE ABSENCE OF SKELETON ARGUMENTS.

The judge commented on the absence of skeleton arguments from both parties.

    1. On 22 October 2015, the Claimant lodged his claim for judicial review. He was released on bail on 23 November 2015.
    2. Summary Grounds of Defence were lodged on 13 November 2015. On 11 August 2016, following the making of the Court of Appeal’s order in Hossain and Others [2016] EWHC 1331 (Admin), the Claimant applied to amend his grounds of challenge. This was done in August 2016. No subsequent application for permission to amend was made.
    3. On 23 November 2016, Peter Marquand (sitting as a Deputy High Court Judge) granted permission on the grounds mentioned above, refusing permission on a separate ground. The Defendant was ordered to file detailed Grounds of Relief on 29 December 2016.
    4. Those were not served promptly, being served on 27 January 2017 following a retrospective application to extend time. On 6 February 2017 Master Gidden refused the Claimant’s application to adjourn the substantive hearing and set directions to the hearing date, including directions for service of skeleton arguments by both parties.
    5. On 20 February 2017 the Claimant sought disclosure of documents including GCID records and detention reviews. On the 21 February 2017, when his skeleton argument was due, the Claimant indicated to the court that his case had not changed since service of the Amended Grounds for Judicial Review and the Detailed Grounds of Defence and that accordingly he did not intend to serve a skeleton argument.
    6. On 28 February 2017 disclosure of the GCID records and detention reviews was provided by the Defendant to the Claimant (albeit partially redacted). The Defendant also on that date indicated to the Court that she too did not intend to file a skeleton argument, her position being adequately set out in the Detailed Grounds of Defence.
The evidence and the hearing
  1. In addition to the Grounds for each side I was provided with the correspondence between 22 October 2015 and the hearing and the relevant judicial review and detention documentation, including the records of the Claimant’s interviews and the detention reviews, correspondence with the Metropolitan Police regarding the ongoing investigation for the perjury trial as well as counsel’s note for the criminal trial.
  2. At the start of the hearing I indicated to both parties’ counsel that it was unacceptable for parties, in defiance of PD54A paragraph 15 and the Administrative Court Judicial Review Guide, (and in this case also of a specific Order of the Court) to fail to serve a skeleton argument. Even where the parties’ cases are adequately (and succinctly) set out in their Grounds, the court requires and is very much assisted by a skeleton which confirms the issues for the court, provides a reading list by reference to the hearing bundle and an estimate of reading time, together with an updated estimate of time needed for the hearing, including judgment where appropriate.
  3. Service of skeletons, albeit late, might also have assisted as regards the new and unpleaded points upon which the Claimant sought to rely during the course of the hearing. One was a legal case on certification and one a new case on the legality of the initial detention arising from the 28 February disclosure. The Claimant also advanced a case on detention which amounted to a considerable expansion of a very skeletally pleaded point, relying on the 28 February 2017 disclosure. The Defendant objected to these points being run without notice.
  4. I refused to permit the new points to be pursued, there being no adequate explanation for their being brought forward without any application notice, draft amendment or other notice – and the remainder of the hurdles which face late applications to amend not being met. The point which amounted to a late expansion of an existing ground, previously pleaded without any particularisation, I permitted; but subject to the service of supplementary written submissions, which of course has caused some delay in the disposal of this matter.”

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