COVID REPEATS 44: DO YOU WANT TO BE LED, BARE HEADED, AROUND WESTMINSTER HALL FOR DRAFTING OVER-LENGTHY SKELETONS?
This series is going to end at 50. I thought I’d end it by looking at some of my personal favourite posts and cases on this blog. We’ll start with the Court of Appeal in Caldero Trading -v- Leibson  EWCA Civ 935. The court made pointed comments about the number of the bundles and length of the skeleton arguments. The court appeared to regret it did not have the power to impose more old-fashioned sanctions.
The appeal was listed for three days, apparently because it was foreseen that we would be treated to a wide-ranging review of the evidence before the judge. In the event, the argument lasted for only about four hours. We were presented with some 17 lever arch files of documents and authorities. Only one authority was actually cited to us and I doubt if we were referred to more than about 24 of the thousands of pages that were copied. I regarded the skeleton arguments on both sides as too long, the appellants’ (which included a schedule and four appendices) occupying 72 pages, and Caldero’s (with no schedule, but also four appendices) 67 pages. The requirements of CPR Practice Direction 52C, paragraph 31, are that skeleton arguments should not ‘normally’ exceed 25 pages. Caldero, however, defended the length of its skeleton by saying that this was not a ‘normal’ appeal, and that it had answered the grounds of appeal in 22 pages, with the bulk of the balance devoted to its cross-appeal, which in the event formed no part of its oral argument to us. I nevertheless still regard both skeletons as having been too long. It is a travesty to call such written submissions ‘skeleton’ arguments.
I also wish to endorse what Rimer LJ has said at  above. There are far too many appeals where the parties simply copy all the trial bundles without thinking out what is actually needed for the appeal hearing. This is not only costly and wasteful but it demonstrates that the parties have not actually thought about the issues on the appeal and how to deal with them. In this case the original 50 trial bundles were reduced to 17, but as Rimer LJ has pointed out, very few documents were actually referred to before us. Furthermore, there was no attempt to produce a “core bundle”, which at least would have helped. The authorities bundles were also produced without any proper thought as to what actually might be needed in an appeal on fact, not a point of law. The so-called “skeletons” of both sides were disgracefully long and showed a disdainful regard for CPR PD 52C paragraph 31. In my view there was nothing in this appeal that required that the “normal” length of 25 pages to be exceeded by either side. It also seems that the parties had not given sufficiently serious thought as to how long the appeal would take. It is the duty of both parties to consider the time estimate, not just the appellants. As I said, somewhat ruefully, in Standard Bank plc v. Via Mat International Ltd EWCA Civ 490 at  – , the punishment for prolix pleadings (and nowadays “skeleton arguments”) that was imposed on the miscreant in Mylward v. Weldon (1596) Tothill 102 ( EWHC Ch 1) may no longer be available today. However, a wholesale failure to comply with the Practice Direction on written submissions and, I would add, failure to use common sense in working out more precisely what bundles are needed for the appeal, may well lead to strict adverse costs orders, which is something we shall have to consider carefully in this case