SIR RUPERT JACKSON ON THE DAY OF HIS RETIREMENT: A REVIEW OF SOME JUDGMENTS ON PROCEDURE
It is well known that Sir Rupert Jackson retires on the 7th March. There are several reviews of the work Sir Rupert has done in re-shaping civil procedure. Here I want to look at a few of his judgments that have appeared on this blog over the years. I am comforted (and have been comforted for quite a while) by the fact that Sir Rupert does not read blogs*. The judgments cover relief from sanctions, lengthy trials, bundles (always a major factor on this blog) and Sir Rupert’s role as “enforcer” in ensuring compliance with the rules in relation to skeleton arguments.
(*This is not hearsay. He told me this himself – so I know it to be true).
REVIEWS: THE JACKSON REFORMS – A RETROSPECTIVE
Before turning to the cases it is worthwhile pointing out the more general reviews of the reforms.
- John Hyde in the Law Society Gazette Jackson reveals his one big regret on eve of retirement.
- Litigation Futures Jackson’s farewell: My reforms were worth the abuse but costs are still too high
- Sir Rupert’s own speech – a review of the civil procedure reforms – Was it all worth it?
- Dominic Regan marks the end of an era & sets the record straight
It is, in my view, too early to come to a view as to whether the reforms have been successful. What is remarkable is that they have not been monitored at all. In his speech given yesterday Sir Rupert observed:
“5 Has anyone been systematically monitoring the effectiveness of the reforms? No. In November 2013, the CJC held a conference at UCL entitled ‘Justice after Jackson’, at which several speakers called for such an evaluation to take place. What was needed was for a university or similarly neutral body (a) to gather the contemporaneous evidence and (b) to make an objective assessment of the successes and failures of the reforms. Unfortunately, no university or similar body stepped forward to do that.1 Instead there has been a stream of journal articles, usually written by people who dislike this or that aspect of the reforms. For obvious reasons, no-one who is content would dream of writing an article to say that.”
SELECTED DECISIONS ON PROCEDURE
It is a rule that all judges must, at some stage, make a few comments about bundles. Sir Rupert is no exception. In Illife -v- Feltham Construction Ltd  EWCA Civ 715.
“Part 5. The Court of Appeal bundle
Paragraph 27 of Practice Direction 52C sets out clear rules concerning what should be included and – more importantly – what should be omitted from bundles prepared for the Court of Appeal. In particular, paragraph 27 (1) provides that the appeal bundle “must contain only those documents relevant to the appeal”.
The present appeal bundle (ignoring the authorities bundle) contains 2,550 pages. This includes numerous duplicates and irrelevant documents. There are at least two copies of Dr Goudsmit’s report and at least two copies of the JCT contract. The arrangement of the correspondence is, to put it charitably, chaotic. It is certainly not chronological. For example, I managed to track down the architect’s important letter of 12th May 2011 at page 1807. His follow-up letter dated 16th June 2011 is tucked away at page 2148. Mr Dearie’s email of 26th September 2011 (about the gap around the flue) is at page 359. Amongst the jumble of correspondence there are copies of superfluous authorities. The brief chronology furnished by the parties does not contain any page references to aid the hapless judge as he/she struggles to piece together the story of what happened.
LENGTHY TRIALS (AND MORE ABOUT BUNDLES)
A comment about time management in trials (and more about bundles) can be found Multiplex Constructions (UK) LImited -v- Cleveland Bridge UK Limited  EWHC 2220(TCC).
There had been a trial on a preliminary issue which lasted a month.
Preparation for main trial. Whilst the parties were battling out the eleven preliminary issues at all levels, their enthusiasm for the main fray never wavered. All thoughts of reaching a sensible settlement after resolution of the preliminary issues (as canvassed at the December 2005 case management conference) were seemingly jettisoned. The parties served pleadings, witness statements and evidence for the main trial, due to start in March 2008. CB pleaded their claim for payment in respect of work done in Scott schedule 2. Multiplex responded with a rival version of Scott schedule 2, setting out Multiplex’s valuation of the work. Multiplex pleaded their claim for damages, alternatively abatement for defects in Scott schedule 1 and their claim for damages for repudiation in Scott schedule 4, to all of which CB have responded. Two recent decisions of this court concerning the pleadings are Multiplex Constructions (UK) Ltd v Cleveland Bridge UK Ltd (No. 4) (“judgment 4”)  EWHC 231 (TCC) andMultiplex Constructions (UK) Ltd v Cleveland Bridge UK Ltd (No.5)  EWHC 569 (TCC) (“judgment 5”). Judgment 4 dealt with CB’s application to re-re-re-amend Scott schedule 2. Judgment 5 dealt with Multiplex’s application to re-amend Scott schedule 4C.
The trial. The parties have raised many hundreds of separate issues requiring decision. The volume of evidence is such that if all matters were to be explored in what may be called “the old style”, the trial would have lasted for well over a year. The parties did not wish to incur costs on that scale. Accordingly they entered into a “chess clock” agreement, whereby the trial would commence on 3rd March (subsequently put back to 10th March) and finish by the end of May, with the time available being shared equally. The trial duly proceeded on that basis and was concluded on Wednesday 28th May. The consequence of this accelerated programme was that many matters were touched upon very briefly at the oral hearing and much of the evidence has been left to my private reading.
AGREEING EXTENSIONS OF TIME
Hallam Estates -v- Baker  EWCA Civ 661. The Court of Appeal allowed an appeal against a refusal to extend time for service of points of dispute.
“By way of digression I comment that rule 3.8 will shortly be amended so that in the ordinary way parties can, without reference to the court, agree extensions of time up to 28 days, provided that this does not put at risk any hearing date. A variety of circumstances may arise in which one or other party (however diligent) may require a modest extension of time. Under rule 1.3 the parties have a duty to help the court in furthering the overriding objective. The overriding objective includes allotting an appropriate share of the court’s resources to an individual case. Therefore legal representatives are not in breach of any duty to their client, when they agree to a reasonable extension of time which neither imperils future hearing dates nor otherwise disrupts the conduct of the litigation. On the contrary, by avoiding the need for a contested application they are furthering the overriding objective and also saving costs for the benefit of their own client.”
SKELETON ARGUMENTS: THE COURT OF APPEAL’S “ENFORCER”
One issue that Sir Rupert’s judgments have touched on several times is the length of skeleton arguments.
Do it properly or you won’t get paid
In Secretary of State for Local Government -v- Hopkins Development Ltd  EWCA Civ 470
“16.I must also say a word about skeleton arguments. The rules governing skeleton arguments in the Court of Appeal are set out in Practice Direction 52A paragraph 5 and Practice Direction 52C paragraph 31. The skeleton arguments must be concise and, in any event, not exceed 25 pages. They must not include extensive quotations from documents or authorities. The way to highlight relevant passages in authorities is by sidelining, not by quoting long passages in the skeleton arguments.
17. The skeleton arguments in this case do not comply with the Practice Direction. Accordingly, whichever party wins will not recover the costs of preparing its skeleton argument”
Far too long
In Tchenguiz -v- Director of the Serious Fraud Office  EWCA Civ 1333
This is an application made pursuant to paragraph 32 of Practice Direction 52C to rely on a supplementary skeleton argument for the purposes of the present appeal. The context in which this application is made is an appeal by the claimant against an order of Mr Justice Eder in the exercise of his discretion under Civil Procedure Rules, rule 31.22.
The rules governing skeleton arguments for use in the Court of Appeal are set out in paragraph 5 of Practice Direction 52A and paragraph 31 of Practice Direction 52C. Paragraph 5 of Practice Direction 52A states that the purpose of a skeleton argument is to assist the court by setting out as concisely as practicable the arguments upon which a party intends to rely. The paragraph goes on to require that the skeleton argument should be concise; it should both define and confine in the areas of controversy; it should not include extensive quotations from documents or authorities. Turning to Practice Direction 52C, paragraph 31 requires that the skeleton argument should not normally exceed 25 pages.
These rules exist for a serious purpose, namely to enable the Court of Appeal to deal with its business in a timely and efficient manner. In the present case, there has been substantial non-compliance on the part of the appellant. The appellant’s initial skeleton argument was prolix and it ran to 47 pages. The appellant now seeks to serve a supplementary skeleton argument 34 pages long, accompanied by an appendix which is 15 pages long. There is a substantial degree of overlap between the two skeleton arguments. It would be time-consuming in the extreme to settle down and identify which passages in the supplementary skeleton argument are genuinely new points and which are merely rephrasing assertions made in the original skeleton argument. It seems to me that all the points dealt with in the supplementary skeleton argument were perfectly foreseeable. In so far as they depart from the original skeleton, they could and should have been dealt with at the outset.
If the appellant felt, on reflection, that the original skeleton argument on which he obtained permission to appeal was defective, the sensible course would have been to prepare a substitute skeleton argument which complied with the rules and to furnish that to the court and the other parties as soon as practicable after the grant of permission. There would then have been a single skeleton argument, compliant with the rules, which set out concisely and helpfully the points which the appellant wished to argue. That did not happen. Instead, one week before the hearing, the appellant served a lengthy supplementary skeleton argument.
The question which now arises is what we are to do in relation to the supplementary skeleton argument, which adds to an original skeleton argument that is already of excessive length. As I say, skeleton arguments of this volume and repetition do not assist the court in its task of resolving the issues between the parties. Doing the best that I can, it seems to me that there is material in paragraphs 28 to 49 of the supplementary skeleton argument which ought to be retained and which should preferably have been included in the original skeleton argument.
Thirty five pages of rambling prolixity
Inplayer Ltd -v- Thorogood  EWCA Civ 1511
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
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 DISSENTING JUDGMENT IN DENTON
I think Sir Rupert himself once commented on the fact that came under a lot of criticism and blame for the decision in Mitchell – a case he was not involved in. Further CPR 3.9 was revised from the draft originally in his report. In Denton he gave a dissenting judgment, his point being that the factors in 3.9 were not dominating factors but matters that had a “seat at the table”, the dominant factor being to “deal justly with the application.
“Rule 3.9 requires the court to consider all the circumstances of the case as well as factor (a) and
factor (b). The rule does not require that factor (a) or factor (b) be given greater
weight than other considerations. What the rule requires is that the two factors be
specifically considered in every case. The weight to be attached to those two factors
is a matter for the court having regard to all the circumstances. The word “including”
in rule 3.9 means that factors (a) and (b) are included amongst the matters to be
considered. No more and no less. As the Bar Council put it in their submissions,
factors (a) and (b) should “have a seat at the table, not the top seats at the table”.
Ultimately what rule 3.9 requires is that the court should “deal justly with the
86. The reason why the rule has been amended to require courts to give specific
consideration to factors (a) and (b) is that previously courts were not doing so. This is
a point which Professor Zuckerman makes in his article The revised CPR 3.9: a coded
message demanding articulation (2013) 32 CJQ 123 at 134, although he criticises the
wording of rule 3.9 as being anodyne and saying nothing that is not already in the
“The conclusions to which I have come are as follows. First, the
courts should set realistic timetables for cases and not impossibly tough timetables in order to give an impression of firmness. Secondly, courts at all levels have become too tolerant of delays and non-compliance with orders. In so doing they have lost sight of the damage which the culture of delay and non-compliance is inflicting upon the civil justice system. The balance therefore needs to be redressed.”
The paragraph then goes on to reject the “extreme course” of refusing relief save in exceptional circumstances.
The judgment then goes on to look at the first instance decision in Denton.
Denton is a good illustration of how courts used to operate under the former rule 3.9 (but should not operate under the new rule). In his concern to enable the claimants to deploy their full case the judge did not consider factor (a) or factor (b). If he had considered all the circumstances of the case as well as factor (a) and factor (b), he would have refused relief. The judge’s order that the claimants pay “the defendant’s costs thrown away by the vacation of the trial” does not begin to meet the justice of the case. There are many hidden costs flowing from adjournment of the trial: witness statements and reports need updating; fee earners handling the litigation may change with a need for newcomers to read into the case; both legal teams continue to work upon the litigation and so forth. In addition to the increased costs there is wastage of resources. Lawyers, experts, factual witnesses and other busy people who had cleared their diaries to attend the trial (probably cancelling other commitments) will have to clear their diaries yet again for another trial a year later. There is also the continuing strain on the parties to consider. What litigants need is finality, not procrastination. Quite apart from its impact on the immediate parties in Denton, the judge’s order has caused unnecessary delay for many other litigants awaiting their day in court.
90.The parties in Denton, Decadent and Utilise are either small businesses or businessmen. Litigation is a massive drain on management time and an unwelcome diversion of resources for any business. It is important for the economy that the courts provide swift and just resolution of disputes involving SMEs: see Preliminary Report chapter 29 and Final Report chapter 25. Hence the need to minimise delay and avoid adjournments or satellite litigation.