SKELETON ARGUMENTS: BE SUCCINCT AND TO THE POINT: “THE ISSUE WAS ALL BUT LOST IN THE PLETHORA OF PAPER”: COURT OF APPEAL FIRES WARNING SHOT

January 4, 2019 · by · in Appeals, Applications, Civil Procedure, Written advocacy

 Now that Lord Justice Jackson has retired someone needs to take his place to provide the (more or less quarterly) reminder to practitioners to keep skeleton arguments short and to the point.   Step in Lord Justice Hickinbottom in Harverye v The Secretary of State for the Home Department [2018] EWCA Civ 2848.

” this issue was all but lost in the plethora of paper.”

THE CASE

The appellant appealed against a decision allowing the Secretary of State to deport him.  The appellant was unsuccessful.

THE COMMENTS OF LORD JUSTICE HICKINBOTTOM

This judgment makes it clear that a simple issue had been made complex, to the point where it was almost lost.
Lord Justice Hickinbottom:
  1. For the reasons given by Irwin LJ, I too would dismiss this appeal. I add some observations of my own only to reinforce his comments as to the unsatisfactory way in which the issues in this case were identified and then dealt with before us.
    1. In this case, the issue for the Secretary of State, and in their turn the tribunals, was straightforward and narrow: had there been a material change of circumstances which justified a fresh decision to deport the Appellant? As Irwin LJ has described, this issue was all but lost in the plethora of paper.
    2. I respectfully agree with Irwin LJ (at [44] above) that it would have been simple for the Secretary of State to have set out in the Notice of Decision what he considered the material change of circumstance to have been. That he did not do so led to considerable time and effort being expended on issues that were not, and were never going to be, determinative of the Appellant’s claim and appeal.
    3. However, in my view, the legal representatives cannot avoid all blame. The grounds of appeal, skeleton arguments and oral submissions lacked the required and expected focus.
    4. As I emphasised recently in Hickey v Secretary of State for Work and Pensions [2018] EWCA Civ 851, especially at [73] and [74(iv)], it is incumbent upon the Appellant to set out in his grounds of appeal, clearly and “as concisely as practicable”, the relevant part of the decision and the way(s) in which it is said to be wrong or unjust (paragraph 5(1) of CPR PD 52C). No more is required of grounds of appeal. Indeed, no more may be incorporated in them.
    5. The grounds of appeal are the well from which the argument must flow. The reasons why it is said the decision is wrong or unjust must not be included in the grounds, and must be confined to the skeleton argument (paragraph 5(2) of CPR PD 52C). The skeleton argument must comply with paragraph 5(1) and (2) of CPR PD 52A, which provides:

“(1) 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.

(2) A skeleton argument must–

  • be concise;
  • both define and confine the areas of controversy;
  • be set out in numbered paragraphs;
  • be cross-referenced to any relevant document in the bundle;
  • be self-contained and not incorporate by reference material from previous skeleton arguments;
  • not include extensive quotations from documents or authorities
The requirement for conciseness is reinforced so far as this court is concerned by paragraph 31(1)(a) of CPR PD 52C, which requires any skeleton argument to comply with the requirements of paragraph 5(1) “and in particular must be concise”.
  1. Where a skeleton argument does not comply with these requirements then it may be returned to its author by the Civil Appeals Office (paragraph 31(2)(a)(i)); and the costs of preparing a skeleton argument which does not comply with these requirements, or which was not filed within the time limits provided by the Practice Direction or order of the court, will not be allowed on the assessment of costs except as directed by the court (see paragraph 5.1(5) of CPR PD 52A, and paragraph 31(5) of CPR PD 52C). Subject to the intervention and guidance of the court, oral submissions should fall within the scope of, and elucidate, the skeleton argument.
  2. This appeal provides a timely opportunity to remind advocates of their obligations in this regard. As I indicated in Hickey (at [75]), compliance with the Rules will ensure that appeal hearings are properly focused, as they must be: insofar as additional time and resources of this court are expended in dealing with less than optimally prepared and focused cases, then other appeals, that are properly advanced and prepared, may not have the resources devoted to them as they deserve, at all or at least in as timely a fashion as they should. Where there is a failure to comply with such important mandatory procedural rules, the courts have a variety of sanctions (including costs orders) at their command.
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