PARTIES MUST OBTAIN AN ORDER FOR A HEARING OF A PRELIMINARY ISSUE: (MORE ON LENGTHY SKELETON ARGUMENTS)

March 13, 2018 · by · in Applications, Case Management, Written advocacy

In Bokova v Associated Newspapers Ltd [2018] EWHC 320 (QB) Mr Justice Dingemans considered several important issues of procedure.   Firstly the need for parties to obtain an order for a hearing on a preliminary issue rather than simply turning up on an application.  This is partly because the court needed to case manage and, possibly costs budget, a case at an early stage to prevent disproportionate costs being incurred. Secondly observations were made on late and over-lengthy skeleton arguments.

“Parties must seek an order for the hearing of the preliminary issue. This is because the making of such an application to the Court for the hearing of the preliminary issue enables the Court, which has powers and duties of active case management, to determine whether a preliminary issue should be heard”

THE CASE

The claimant brought an action in libel.  She made an application that certain matters be heard.  The judge heard that application but stated that the court should have made directions beforehand.

THE JUDGMENT: THE NEED FOR DIRECTIONS FOR THE TRIAL OF A PRELIMINARY ISSUE

The need for an order providing for the hearing of the preliminary issue
    1. The wording of the application made by Mrs Bokova on 30 November 2017 for the hearing of the preliminary issue was for “an order … for the determination by way of preliminary issue of the actual meaning of the words”. Associated Newspapers agreed that meaning should be determined as a preliminary issue and the other applications should be heard at the same time, but no order for the hearing of a preliminary issue was made by the Court. This meant that the parties turned up for a hearing of the preliminary issue on meaning before me on 8th February 2018 and for the hearing of the other applications without an order having been made for the preliminary issue to be heard.
    2. The approach taken by the parties to the application for a preliminary issue, which mirrors the approach taken by other parties in similar applications, raises a point of procedure. Parties must seek an order for the hearing of the preliminary issue. This is because the making of such an application to the Court for the hearing of the preliminary issue enables the Court, which has powers and duties of active case management, to determine whether a preliminary issue should be heard, see Hope not Hate v Farage [2017] EWHC 3275 (QB) at paragraphs 35 and 36.
    3. In this case I agree with the parties that hearing a preliminary issue on the meanings of the articles was a sensible step to be taken. This is because it will enable the statements of case to engage with the meanings of the articles rather than a range of possible meanings. I therefore agree that the Court would have directed a hearing of the preliminary issue. However in my judgment a Court, if it had had the chance, would not have also directed an immediate hearing of the application for the strike out application and application for judgment. This is because at least part of the strike out application will depend on the actual meaning of the articles as determined at the preliminary issue. Indeed at the hearing it became common ground that the applications to strike out and for judgment should be adjourned so that the Court could give a ruling on the meaning of the articles.
    4. Further a Court deciding whether to order the hearing of a preliminary issue would also have had case management powers (pursuant to CPR 1.1(2)(b) and CPR 1.4(h); CPR 3.12, CPR 3.13 and PD3E at paragraph 3(a)) to make an order requiring the parties to file and exchange costs budgets for the application. As it was the parties lodged costs schedules for all of the applications for the hearing before me which totalled over £105,000 for Mrs Bokova and over £50,000 for Associated Newspapers. I recognise the importance of the issues for the parties, which included on the face of the applications an application for judgment and an injunction. However the sums in the costs schedules are very substantial sums which do not have the appearance of being proportionate to the hearing of a preliminary issue on meaning. Excessive and disproportionate costs should not be allowed to become or remain a barrier to either bringing or defending claims for libel. Since the hearing of this action an order providing for costs budgets for a preliminary issue on meaning has been made in other proceedings (Arnold Mballe Sube v News Group Newspapers, order dated 14 February 2018). It is to be hoped that costs budgets, and costs management if necessary, will ensure that the costs of preliminary issues are proportionate.
    5. As it is, I have heard and determined the preliminary issue on meaning, and the order that I make will also include an order providing for the hearing of that preliminary issue.

THE JUDGMENT ON SKELETON ARGUMENTS

Excessive length of Skeleton Arguments
  1. Both parties lodged Skeleton Arguments at some stage on Wednesday 7 February 2018, which was the day before the hearing before me. This was in breach of the requirement to file Skeleton Arguments “not later than one day before the hearing” as provided for in the Queen’s Bench Division Guide at paragraph 12.3.7(2). Further the Guide provides that Skeleton Arguments should be “as brief as the issues allow and not normally be longer than 20 pages …” at paragraph 12.3.8 (4). These Skeleton Arguments did not comply with that provision, numbering 39 pages for Mrs Bokova and 34 pages for Associated Newspapers.
  2. Late Skeleton Arguments do not normally provide assistance to the Court because the Court will not have time to read them. As a matter of fairness to the parties I should note that because I was sitting in Court on 6 February and was in Court on 7 February giving judgment and was then dealing with “immediates” (urgent applications to the Administrative Court), the late filing was not material to when I could read the Skeleton Arguments. However the excessive length of the Skeleton Arguments, especially given the limited time to read them, was very unhelpful.
  3. In the Court of Appeal in Raja v Van Hoogstraten [2008] EWCA Civ 1444; [2009] 1 WLR 1143 Mummery LJ commented on very long Skeleton Arguments (the one in that case was 110 pages long) at paragraph 125-127 of the judgment saying: “Practitioners who ignore practice directions on skeleton arguments… and do so without the imposition of any formal penalty are well advised to note the risk of the court’s negative reaction to unnecessarily long written submissions … An unintended and unfortunate side effect of the growth in written advocacy … has been that too many practitioners, at increased cost to their clients and diminishing assistance to the court, burden their opponents and the court with written briefs“.
  4. The Court of Appeal revisited the issue in Standard Bank plc v Via Mat International Ltd [2013] EWCA Civ 490; [2013] 2 All ER (Comm) 1222. Moore-Bick LJ said at paragraph 27 “… in general a short, concise skeleton is both more helpful to the court and more likely to be persuasive than a longer document … I wish to draw attention to the provisions of Practice Directions … Failure to comply with them is likely to be penalised in costs”. These rules apply to all fields of law, see the judgment of the Court of Appeal in Tchenquiz v Director of the Serious Fraud Office [2014] EWCA Civ 1333; [2015] 1 WLR 838 at paragraph 10. In that case the Claimants were prevented from recovering the costs of a non-compliant Skeleton Argument.
  5. I should balance my remarks about the length of the Skeleton Arguments and record that I am very grateful to Sir Edward Garnier QC and Mr Atkinson, Mr Andrew Caldecott QC and Mr Glen, and their respective legal teams, for the succinct and helpful oral submissions.
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