ADVOCATES, ROAD MAPS AND DEPARTING FROM THE STRUCTURE OF WRITTEN SUBMISSIONS
There is an interesting passage in the judgment of Turner J in Court Enforcement Services Ltd v Burlington Credit Ltd  EWHC 1920 (QB) relating to written submissions and advocacy.
“… there appears to me to be a growing trend for advocates to present cases orally in a way which bears only a passing resemblance to the structure earlier laid out in their written submissions”
The judge was determining the priority of creditors in relation to money paid to an enforcement agent. (The amount in dispute was £12,500).
THE JUDGE’S COMMENTS ON THE HEARING
The matter came before me on 21 March 2019 and things got off to an unpromising start. Counsel for the applicant referred to what he described as a “road-map” through which he intended to guide me in the course of his oral submissions. Unhappily the road–map followed a markedly different path than that which had been laid out in the written skeleton argument which had preceded it and, although the intended destination was the same, the new route now included a number of unheralded scenic diversions through an unfamiliar landscape.
Of course, oral submissions are important but they should be seen primarily as the means by which arguments already articulated in outline in the skeleton arguments are to be fleshed out, refined and tested. Perhaps my experience is unrepresentative but there appears to me to be a growing trend for advocates to present cases orally in a way which bears only a passing resemblance to the structure earlier laid out in their written submissions. In cases such as this, in which the point in issue is one of pure law and not without complexity, it is unhelpful for oral arguments to depart significantly from their written predecessors. Naturally, occasions will arise when the immediate anticipation of a hearing concentrates an advocate’s mind wonderfully and thus generates freshly minted submissions. Of course, the court will indulge such late inspirations as far as it is practicable so to do. But sometimes, as in the instant case, this is not possible.
I cannot altogether exclude the possibility that my struggles to follow counsel’s oral submissions were attributable to a disappointing and unforeseen lack of mental agility on my part and, if so, it is an explanation which I would readily forgive him for not articulating in open court. However, whatever the reason, the result was that I declined to set about the business of writing this judgment until I had the benefit of further written submissions more closely reflecting counsel’s oral “road-map”. The fact that my invitation for such further input has now prompted the parties to consolidate their representations in over fifty further pages of written submissions in small font leads me, albeit conveniently, to believe that my request was entirely justified.”