BUNDLES TOO BIG, SKELETON ARGUMENTS TOO LONG – THEN THE COURT MAY SIMPLY REFUSE TO ACCEPT THEM: PREPARATION FOR HEARING GOES OFF THE TRACKS
The problems caused by over-lengthy skeleton arguments and voluminous bundles feature regularly on this blog. They are, in fact, some of the most widely read posts on the blog. I do not have to go looking for cases on these issues. Judges regularly preface judgments with criticism (that sometimes can be categorised as scathing) of the skeletons and/or the bundles. These come under fire in the judgment of Mr Justice Holgate in Network Rail Infrastructure Ltd, R (On the Application Of) v The Secretary of State for the Environment, Food And Rural Affairs  EWHC 2259 (Admin). The point is made, robustly, that lengthy skeleton arguments hinder more than help. Out of a “core bundle” of 250 pages only 6 pages were looked at. Rather than clarifying matters the number of points and documents raised hid, almost completely, the one good point the claimant had.
“The Court has wide case management powers to deal with such problems… For example, it may consider refusing to accept excessively long skeletons or bundles, or skeletons without proper cross-referencing. It may direct the production of a core bundle or limit the length of a skeleton, so that the arguments are set out incisively and without “forensic chaff”. It is the responsibility of the parties to help the Court to understand in an efficient manner those issues which truly need to be decided and the precise points upon which each such issue turns. “
The claimant was attempting to judicially review a preliminary finding of an Inspector in relation to the stopping of a footpath.
THE JUDGE’S COMMENTS ON THE SKELETONS AND BUNDLES
I regret the need to have to make some observations on the inappropriate manner in which the claim was put before the court. I do so in order to make it plain to litigants that the practices that were followed in this case, and regrettably sometimes in others, are not acceptable. Notwithstanding the clear statement by Sullivan J (as he then was) in R (Newsmith Stainless Ltd) v Secretary of State for Environment, Transport and the Regions EWHC (Admin) 74 at paragraphs 6-10, this claim was accompanied by six volumes comprising over 2,000 pages of largely irrelevant material. The Claimant’s skeleton argument was long, diffuse and often confused. It also lacked proper cross-referencing to those pages in the bundles which were being relied upon by the Claimant. The skeleton gave little help to the court.
Shortly before the hearing the court ordered the production of a core bundle for the hearing not exceeding 250 pages. During the hearing, it was necessary to refer to only 5 or 6 pages outside that core bundle. Ultimately, as will be seen below, the claim succeeds on one rather obvious point concerned with the effect of the Grampian condition in the 2016 permission. But this had merely been alluded to in paragraph 76 and the first two lines of paragraph 77 of the skeleton. Indeed, the point was buried within the discussion of Ground 3 of the claim, a part of the Claimant’s argument to which it does not belong. Nevertheless, Mr Tim Buley, who appeared on behalf of the Defendant, acknowledged that he had appreciated that this point could be raised. He was ready to respond to it.
Certainly, for applications for statutory review or judicial review of decisions by Planning Inspectors or by the Secretary of State, including many of those cases designated as “significant” under CPR PD 54E, a core bundle of up to about 250 pages is generally sufficient to enable the parties’ legal arguments to be made. In many cases the bundle might well be smaller. Even where the challenge relates to a decision by a local planning authority, the size of the bundle need not be substantially greater in most cases.
Prolix or diffuse “grounds” and skeletons, along with excessively long bundles, impede the efficient handling of business in the Planning Court and are therefore contrary to the rationale for its establishment. Where the fault lies at the door of a claimant, other parties may incur increased costs in having to deal with such a welter of material before they can respond to the Court in a hopefully more incisive manner. Whichever party is at fault, such practices are likely to result in more time needing to be spent by the judge in pre-reading material so as to penetrate or decode the arguments being presented, the hearing may take longer, and the time needed to prepare a judgment may become extended. Consequently, a disproportionate amount of the Court’s finite resources may have to be given to a case prepared in this way and diverted from other litigants waiting for their matters to be dealt with. Such practices do not comply with the overriding objective and the duties of the parties (CPR 1.1 to 1.3). They are unacceptable.
The Court has wide case management powers to deal with such problems (see for example CPR 3.1). For example, it may consider refusing to accept excessively long skeletons or bundles, or skeletons without proper cross-referencing. It may direct the production of a core bundle or limit the length of a skeleton, so that the arguments are set out incisively and without “forensic chaff”. It is the responsibility of the parties to help the Court to understand in an efficient manner those issues which truly need to be decided and the precise points upon which each such issue turns. The principles in the CPR for dealing with the costs of litigation provide further tools by which the Court may deal with the inappropriate conduct of litigation, so that a party who incurs costs in that manner has to bear them.
RELATED POSTS: BUNDLES
- Bundles in the Supreme Court: exercising restraint
- Babies, bundles, human rights, proportionality, conduct and costs: all in one judgment
- What they don’t teach you at law school VIII: bundles, courtesy & mints.
- Bundles, exhibits and pagination: avoiding costly mistakes
- The Supreme Court considers the question of expensive bundles
- Another comment on bundles: too much and too big
- Promiscuity and bundles: can cause consternation.
- Trial bundles: Timing, Contents & Presentation: and do you know “Sedley’s Laws” ?
- Trial bundles. Sedley’s Laws and Documentary Carpet Bombing.
- Troublesome bundles yet again.
- Proportionality, bundles and £3 million spent on costs.
- When bundles & sanctions collide.
- More on Bundles: there is much time and money to be saved yet.
- Lengthy bundles and interim costs.
- Get bundles and skeletons to court or else.
- Relief from sanctions: Bundles: Expert evidence and litigants in person.
- Costs, proportionality and getting the bundles right.
- “Madness” over costs and useless trial bundles.
- More about trial bundles: Most of the stuff in them is useless (apparently).
- Bundles, appeals and the art of advocacy: Are poor bundles letting down your case?
- Useless Bundles; lengthy skeletons and judicial ire.
- A word about bundles: More views from the Bench.
- Trial Bundles: Another view from the Bench.
- The Importance of Trial Bundles again: Read Legal Orange.
- Yet more on bundles
- More comments from the Court of Appeal on Bundles.
- Useless bundles: all litigation life is here.
- More on bundles: very difficult to useExhibits
RELATED POSTS: SKELETONS
- Skeleton arguments too long & amount of documents “absurd”: a justifiable judicial complaint.
- “Unnecessary, unhelpful and unacceptable: over-long skeleton arguments – again.
- This is a sorry tale of woe: speculative skeleton arguments are of no assistance.
- Picking up bad citations: & skeleton arguments – still too long.
- Skeleton arguments: do them properly or you won’t get paid (the triquel).
- Skeleton arguments: if you don’t do them properly you won’t get paid.
- Drafting a skeleton or want to serve an additional skeleton argument? Then you had better read this
- Useless bundles; lengthy skeletons and judicial ire: The Court of Appeal rules inability to impose “old fashioned” sanctions..
- Skeleton arguments more examples online: You can have Cotton if you can’t have silk.
- Drafting skeleton arguments and notices of appeal: more examples online.