THE COLLECTIVE NAME FOR HAND UPS: A “BLIZZARD”OR “HARASSMENT”? WHY IS IT JUDGES LIKE BREVITY SO MUCH?

In his speech to the Peter Taylor memorial lecture “Complexity and Obscurity in the Law, and how we might mitigate them.” Lord Justice Irwin observed  “there is a special ring in hell for the advocate who stands up at 10:31 with the words “My Lady, My Lords, I have prepared a Speaking Note which is on the bench”.   This issue of lengthy “speaking notes” was one of the issue mentioned by Mr Justice Turner in  Município De Mariana & Ors v BHP Group Plc & Anor [2020] EWHC 2471 (TCC).  It is an issue worth isolating and looking at (with brevity).

THE JUDGMENT IN BHP GROUP

Mr Justice Turner observed that there was voluminous documentation at the stage where he was involved in case management.

1. 1. I indicated that I would proceed on a “we are where we are” basis. I permitted the parties to serve further evidence to deal with specifically defined recent developments in the Brazilian proceedings but to be strictly confined to no more than 20 pages each. I also accepted that the skeleton arguments would probably have to be longer than usual in order to cover the relevant ground. There was, however, a limit to the extent of the arguably over-generous indulgence I was prepared to afford the parties whilst at the same time remaining loyal to the need to comply with the overriding objective.

   2. That limit was reached on the morning of the seventh day of the eight-day hearing.

   3. By that stage, the Court had already been the unenthusiastic recipient of a considerable number of “speaking notes” from Mr Hollander QC which the cynical observer may have categorised, at least in part, as a labelling exercise to render the late introduction of new or more detailed material more palatable to the Court. Hitherto, Mr Gibson QC, on behalf of the defendants had responded to the deployment of such notes with weary resignation rather than outright opposition. On this occasion, however, he objected specifically to the introduction of a new argument to the effect that Samarco might not be able to afford to meet the judgments in all the claims brought against it in Brazil. His cri de coeur was expressed in these terms:

“My Lord, I had hoped that would be it, but last night, and indeed this morning, we had a further repetition of what we have been enduring, which is another blizzard — a harassment, I don’t know what the collective name for hand-ups is, a harassment of hand-ups and we’ve received four more this morning. We are provided with these with no opportunity to look at them and this is a case in point.”

THE ADVICE GIVEN BY LORD JUSTICE IRWIN

It is worthwhile returning to the advice given by Lord Justice Irwin.  In his talk he specifically dealt with the skeleton argument.

“But there is one further important source of complexity and obscurity I have not yet mentioned. It is both a cause of the problem and should provide much of the cure. It is the current approach to advocacy. Here too I begin with the problems, before suggesting the mitigation.

The excessively long and complex skeleton argument is a curse. You know who you are. My clerk writes your name in the black book, held in the archive of the Junior Ganymede Club. Advocacy really is – or it really should be – the art of persuasion. A skeleton argument is not an opportunity to ruminate on the subject in hand, formulating gradually what your case might be. Nor is a skeleton argument properly an opportunity to include passages from that pleasing win you had in front of Mr Justice Over-Generous. Nor to include all those cases in your standard skeleton which might be sort of relevant: a kind of “pick-n-mix” of authority, just in case the other side say something awkward. Nor is the skeleton argument the place to include all those points that might just work if the tribunal is not especially alert on a Friday afternoon close to Christmas.Perhaps especially important, the skeleton argument is not a place to include a whole range of points advanced by your instructing solicitor or your corporate client, but which you know in your heart of hearts will never succeed.

Then, there is a special ring in hell for the advocate who stands up at 10:31 with the words “My Lady, My Lords, I have prepared a Speaking Note which is on the bench”. I have cut my way through the undergrowth of your ill-formed skeleton argument, noting as I go. I have crossed-referred to the submissions of the other side. I have reached a provisional view of what might be your good points and a pretty clear view on the duds. In order to be sure of one of the latter, I have read an extensive witness statement that came to nothing. Now you have finally thought your way properly through your case and abandoned the duds, or most of them. But you have thought of two new points, one of which means that the other side have a legitimate reason to take some instructions, and it now may be in doubt whether the matter can go on today. The timetable was already tight. We will not be able to do anything very useful with the 45 minutes they require. You are a viper from the Pit….

…Turning to advocacy, it will have been pretty clear from my recitation of what goes wrong as to how it may be put right. It is not a matter of straightforward mathematical limits on font size, length of submissions and so forth. The heart of it is that advocates should, please, concentrate on the function of advocacy. Written submissions are not permissible which are simply a regurgitation of the memory, either of the advocate or of the word processor. The function of advocacy is to persuade the tribunal. Nothing is persuasive unless it is selective and given emphasis. Advocates must have the courage, having thought through the case, to choose the propositions and arguments which really are important, and which truly have a prospect of success. Selection and clarity, backed up only by the necessary case citation, and by cases which are apt in context, will always aid success. Anything less focussed will irritate and may risk success. Remember Lord Judge’s history master and avoid the Anxious Parade of Knowledge.

Moreover, if the case does require a long or longish skeleton argument (let us say more than eight pages), at least begin with your key propositions. What are you trying to establish? If you have the courage and can achieve the clarity to say so simply at the beginning, then the arguments, for better or worse, will fall into place behind.”