SKELETON ARGUMENTS TOO LONG & AMOUNT OF DOCUMENTS “ABSURD”: A JUSTIFIABLE JUDICIAL COMPLAINT

June 13, 2017 · by · in Applications, Bundles, Written advocacy

In ICAP Management Services Limited -v- Berry [2017] EWHC 1321 (QB) Mr Justice Garnham added his voice to those judges who have protested about the length of skeleton arguments and written submissions and the burden of unnecessary documents.

“It is evident that the authors of the skeletons in the present case were proceeding on the assumption that they could demand of the court such judicial time as they thought necessary. In that they were mistaken.”

“The skill in drafting a skeleton argument lies in the production of a concise outline of the essential elements of the argument which is to be developed orally in court.”

“In truth, these were not skeleton arguments at all; the arguments contained in these documents were fully fleshed out and dressed in much unnecessary finery.”

“The provision of that sort of volume of material in a four day case is absurd”

THE CASE

The claimant was seeking the continuance of an injunction in relation to enforcing “garden leave” on the part of the first defendant.

THE JUDGE’S OBSERVATIONS ON CASE MANAGEMENT

  1. This case came on for hearing on 28 April 2017. At the parties’ suggestion, but with my agreement, a live transcription service was employed throughout the hearing. I was provided with a typed transcript of evidence and argument at the end of each day. That was very helpful.
  2. In advance of the hearing, I had received skeleton arguments from all three parties. Paragraph 12.3.8 of the Queen’s Bench Guide sets out the requirements for a skeleton argument. It provides that skeleton arguments should “not normally be longer than twenty pages of doubled spaced A4 paper”. Converting the skeleton arguments in this case to that format produces a skeleton argument from the claimant of 151 pages, plus 35 pages of appendices. For the first defendant the figure was 158 pages, plus eight pages of appendices; for the second defendant the figure was 51 pages, plus six pages of appendices. There was, in fact, no significant issue between the two defendants; the provision of two separate skeletons of such length making similar points was singularly unhelpful.
  3. This was a case with a time estimate of six days including two days for pre-reading. The issue at stake was the enforcement of the terms of an employment contract for something less than three months. The overriding objective, set out in CPR 1.1(2), directs the court to ensure that cases are dealt with “justly and at proportionate cost”. That includes allotting to the case “an appropriate share of the court’s resources”. As I made clear to the parties at the commencement of this hearing, skeleton arguments of the length described above, in a case such as this, are inconsistent with that overriding objective. The skill in drafting a skeleton argument lies in the production of a concise outline of the essential elements of the argument which is to be developed orally in court.
  4. It is evident that the authors of the skeletons in the present case were proceeding on the assumption that they could demand of the court such judicial time as they thought necessary. In that they were mistaken. The length of the written argument means that the vast bulk of such pre-reading time as was allowed had to be devoted to reading them, rather than underlying documents. In fact, in this case, the length and complexity of the written argument served to obfuscate the real issues in the case. In truth, these were not skeleton arguments at all; the arguments contained in these documents were fully fleshed out and dressed in much unnecessary finery.
  5. I indicated at the beginning of these proceedings that I was minded to disallow a substantial part of the costs of preparing the skeleton arguments. I will, of course, hear submissions on that issue, but that remains my preliminary view.
  6. In addition to the excessive skeleton arguments, I was presented with a grossly excessive volume of documentation. The primary bundles for use in court ran to 13 volumes. I also received a further 44 lever arch files of allegedly confidential documentation. Of the 14,000 pages of documentation in the confidential files, I was referred at the hearing to less than 100. I was also provided with six volumes of authorities.
  7. The provision of that sort of volume of material in a four day case is absurd. It too is contrary to the overriding objective. It betrays a failure by those acting for all the parties to adopt a sensible and constructive approach to preparation. My current view, again subject to submissions at the handing down of this judgment, is that a substantial part of the costs of producing or agreeing this vast quantity of material should also be disallowed.
  8. In order to make this hearing manageable, I gave a series of case management directions on the first morning of the trial. First, I required the parties to file and serve an agreed list of issues. Second, I directed the provision of summary statements of case which were to run to no more than twenty pages each. Third, I directed the production of a schedule setting out where the parties’ cases could be found in the skeleton argument on each of the agreed issues. Fourth, I directed the production of an agreed glossary to help the court with the forest of acronyms employed in the documentation.
  9. I record here my gratitude to all the parties for their work over the following weekend in producing that material on time. The list of issues proved especially useful in ensuring that argument was directed to what really mattered. Whilst I seek to cover the topics identified in the list of issues in this judgment, I do not regard myself as bound to follow that structure. In fact, as will become apparent, my resolution of the critical issues has led me to deal with matters in a somewhat different way.
  10. I also directed that closing submissions would be completed within a single day, but that I would permit brief, supplementary, written closing submissions if they were felt to be necessary. I received a 32 page document from Daniel Oudkerk QC on behalf of the claimant, a nine page document from Matthew Sheridan for the first defendant and a 30 page document from Paul Goulding QC for the second defendant.
  11. During the course of the hearing, I expressed the provisional view that I might be assisted in understanding how the various businesses operated in practice by visiting their premises. As a result, and with the agreement of all parties, I was shown around the trading floors of ICAP and Tullett Prebon by ICAP’s in-house solicitor before court on the last day of the hearing. I was accompanied by junior counsel for all three parties. The visit lasted in total some 30 minutes. I express my thanks to all concerned.
  12. At the end of the hearing I extended O’Farrell J’s interim injunctions until the handing down of this judgment.
  13. I have read carefully all the various iterations of the parties’ cases. But I make it clear, at the start of this judgment, that I do not intend to address each of the numerous arguments set out in the skeleton arguments, summary cases and closing submissions. Were I to do so, this judgment would run for hundreds of pages and would not be delivered until after that period for which the permanent injunctions are sought, thus rendering the exercise pointless, at least for the purposes of this action. I propose to do no more than is strictly necessary to decide the case.

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