A CASE SUMMARY SHOULD BE IMPARTIAL NOT AN EXTENSION OF A SKELETON ARGUMENT

In Beg v Beg & Ors [2021] EWHC 2598 (Ch) HHJ Cooke made some important points about the need for a case summary to be impartial.

“A case summary, whether or not an agreed document, is intended to summarise the case before the court for the assistance of the judge and so should so far as possible be a neutral summary setting out the contentions of all parties, not a partisan presentation of the case of one side only.”

THE CASE

The judge was hearing an application under the Inheritance (Provision for Family and Dependants) Act 1975.

 

“35. Mr Quirke’s skeleton referred to a document sent a few days beforehand headed “Succinct Case Summary”, which might have given the impression that it was intended to be a neutral document but which Mr Quirke confirmed when I asked was not a document that had been the subject of any attempted agreement between the parties and was best regarded as an extension of his skeleton.
  1. This is not, in my view at all a satisfactory way to proceed. The case sought to be made at trial necessarily relies on matters of fact that had not been put in issue by the pleaded case (which is as noted extremely limited in a Part 8 claim) or even by the evidence filed by the claimant in support of that case. Much of that factual background is outside the claimant’s own knowledge and so attested to by nothing more than her assertion. Insofar as it might be said that the defendants have not responded by producing evidence to counter those assertions, it may well be because they either would not have needed to do so, because they were not matters apparently in issue, or have not had the procedural opportunity to do so as a result of the claimant’s changes of the way she puts her case. A case summary, whether or not an agreed document, is intended to summarise the case before the court for the assistance of the judge and so should so far as possible be a neutral summary setting out the contentions of all parties, not a partisan presentation of the case of one side only.

 

THE RULES AS TO DRAFTING CASE SUMMARIES

Practice Direction 29 – the Multi Track

“5.7
(1) A case summary:
(a) should be designed to assist the court to understand and deal with the questions before it,
(b) should set out a brief chronology of the claim, the issues of fact which are agreed or in dispute and the evidence needed to decide them,
(c) should not normally exceed 500 words in length, and
(d) should be prepared by the claimant and agreed with the other parties if possible.”

IN SUMMARY

they have to be:

  • Succinct.
  • Comprehensive.
  • Non-adversarial.
  • Useful.

Yet little guidance is available.

Some practitioners treat Case Summaries with profound suspicion. Others regard them as a marvellous vehicle for venting the splint “The dishonest claimant seeks ridiculous damages from the innocent defendant in this trumped up claim” (this is only a slight exaggeration).  The only impact that such a summary will have is to lead the judge to doubt the drafter’s “equilibrium” (I am putting this kindly).

GUIDANCE FROM THE HANDBOOK FOR LITIGANTS IN PERSON

At 13.13 the guidance states:

“Some judges order a Case Summary to be prepared and filed. This is a brief statement of your case, hopefully on one side of A4; you do not need to give a detailed account. A good case summary will be non contentious and will set out the nature of the dispute and the issues that arise on the pleadings. Try and agree a case summary with your opponent and file it in court before the hearing so that the judge can read it and be up to speed with the case when the hearing begins.”

THE NEW LAW JOURNAL

There is an important article in  New Law Journal  from District Judge Nigel Law about his experience with case summaries in the county court.  The case summaries he found were too long and rarely useful.  This set me looking for examples of “good” case summaries. The search was fruitless. There is no doubt that the case summary is a humble, overlooked, document.  I am now on the lookout  for examples of “best practice”.

“The importance of the case summary, chronology, and schedule of issues cannot be overstated. The greatest compliment you can receive is for the judge to quote in his judgment from one or more of these documents.”

FURTHER GUIDANCE FROM THE DISTRICT JUDGE

District Judge Lord  reminds practitioners that:

  • A case summary should be a concise but complete overview of the whole case.
  • It is designed so that the judge can quickly grasp the essential facts and matters in issue.
  • Reading time is limited.
  • Deliver the case summary in good time.
  • Sending the case summary the same morning as the hearing is never helpful.