SKELETON ARGUMENTS: NOT TOO LONG, NOT TOO SHORT: MISSIVE FROM THE HIGH COURT: THE IMPORTANCE OF GETTING THEM “JUST RIGHT”

December 1, 2021 · by · in Appeals, Written advocacy

In Overd & Ors v The Chief Constable of Avon And Somerset Constabulary [2021] EWHC 3100 (QB) Mr Justice Linden reminded advocates of the guidance relating to skeleton arguments. One was too long, the other too short.

 

 

THE CASE

The judge was hearing an appeal relating to the dismissal of a case for wrongful arrest and malicious prosecution, amongst other things, relating to public preaching.

THE JUDGE’S OBSERVATIONS IN RELATION TO THE SKELETON ARGUMENTS

    1. In view of the skeleton arguments which had been prepared by Counsel, and the 891-page appeal bundle, I felt it necessary to remind them of paragraph 5 of Practice Direction 52A and of CPR 52.21 and to ask about the basis for the appeal.
    1. Mr Daniels had prepared a 30 page skeleton argument which, with respect, was not “concise” and did not “define and confine the areas of controversy” as clearly as it might have (paragraph 5(2) PD 52A). As part of the overall approach in this document, his skeleton argument suggested that I pre-read for half a day to a day. His list of pre-reading included asking me to watch an hour of footage of the events of 6 July 2016 and to read the whole of the following documents from the trial: all of the statements of case (35 pages), all of the Claimants’ witness statements (35 pages), the statements of seven police officers (52 pages), the transcripts of the whole of the evidence of some of the witnesses at the trial (324 pages), and the opening and closing written arguments of the parties (113 pages) as well as the Judgment (40 pages) and the parties’ skeleton arguments for the purposes of the appeal (40 pages). The body of Mr Daniels’ skeleton argument then contained very few cross-references to the trial documents which he had suggested I read. The overall impression given was that he wished to re-argue the case which had been argued below.
    1. I told Counsel that I had viewed parts of the footage on a provisional basis but that it would be a matter for submission as to whether I should take it into account. In the time available to me I had not been able to read all of the materials which were before the Judge which Mr Daniels had listed, and he would therefore need to draw attention to any particular aspects of the evidence or arguments below on which he relied. I also reminded Mr Daniels that an appellate court would not normally re-try the case and asked him whether he was alleging errors of law on the part of the Judge or errors of fact. He said that his case was that the Judge had erred in law, that he did wish me to take the footage into account but that he would only be taking me to some of the evidence which was before the Judge. This was part of the evidence in relation to the behaviour of the crowd and the question whether the police should have reacted by dealing with the individuals whom they recognised as troublemakers, rather than by arresting the Claimants.
  1. Mr Ley-Morgan provided a 9-page skeleton argument which was, at least, succinct. It also helpfully directed me, with cross references to the bundle, to specific passages in the materials which were before the Judge. But the introductory paragraph stated that the Defendant relied on everything said in his written closing submissions on the law and the facts at trial (43 pages) so far as relevant to the appeal. This was contrary to the requirement in paragraph 5(2) of Practice Direction 52A that skeleton arguments must “be self-contained and not incorporate by reference material from previous skeleton arguments”.
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