SERVING A SKELETON LATE DOES NOT A HAPPY JUDGE MAKE: IT IS A VICE TO SUPPLY MATERIALS LATE IN THE DAY

In  Karimi, R (On the Application Of) v Sheffield City Council [2024] EWHC 93 (Admin) Fordham J sent out a reminder to practitioners (and particularly those who draft skeleton arguments) of the need to file skeleton arguments in accordance with the rules or directions.

“It is a common misconception that Judges pre-read cases the day before the hearing, or perhaps the evening before the hearing. The true position is that we frequently have to pre-read cases ahead of that. We also have to decide which cases to pre-read, when and in what order. We want to be able to prepare a case by pre-reading, in one sitting, with confidence that we have everything we need, including any skeleton arguments or other materials that are designed to assist us. It is therefore a vice to supply materials late in the day. It is a vice to do so unheralded, with no prior warning. “

THE CASE

The judge was considering an application for permission to appeal in relation to a local authority age assessment of the claimant.  Having granted permission to appeal he made an observation in relation to the filing of the defendant’s skeleton.

THE JUDGMENT ON THIS ISSUE
8. The first is a point about documents and pre-reading by the Judge.
9. Here is what happened in the present case. This oral permission renewal hearing was listed for Tuesday 23 January 2024. The Claimant had filed a skeleton argument, in accordance with a direction of the Court (7 days before the hearing). The Defendant had filed its summary grounds of resistance. The Administrative Court Judicial Review Guide 2023 at §20.4.3 says that for permission renewal hearings, unless otherwise ordered, any skeleton argument should be served “at least two working days before the hearing”. Like any Judge, I wanted to be clear about when I could prepare this case by pre-reading the documents. My clerk had emailed the parties on Wednesday 17 January 2024. She listed the materials that the Court had, including the Claimant’s skeleton argument. She asked this question: “If there is anything further, what is it and when can the Judge expect it?” The message from Mr Davies, later on 17 January 2024, was that the listed documents were “complete”. In the event, a skeleton argument from Mr Davies came to my clerk and to the Claimant at 16:36 yesterday, Monday 22 January 2024, emailed by his instructing solicitor. I had pre-read this case on Friday afternoon. Yesterday, I was listed in Manchester doing another case. Mr Davies has apologised. He has explained that he had formed the view that, on reflection, it would assist the Court to have a brief further document from him, to assist the Court and Mr Buckley with forewarning of what he was going to say. In fairness to Mr Davies there may also have been a degree of prompting from the fact that the Council had itself sent an email (yesterday at 11:33) saying that it had not yet been served with the Defendant’s skeleton argument. I make clear that I accept the apology and explanation from Mr Davies and what I am about to say is no criticism aimed at him. Rather, it is an observation which may illuminate the position for court users, from the perspective of the Court.
10. It is a common misconception that Judges pre-read cases the day before the hearing, or perhaps the evening before the hearing. The true position is that we frequently have to pre-read cases ahead of that. We also have to decide which cases to pre-read, when and in what order. We want to be able to prepare a case by pre-reading, in one sitting, with confidence that we have everything we need, including any skeleton arguments or other materials that are designed to assist us. It is therefore a vice to supply materials late in the day. It is a vice to do so unheralded, with no prior warning. I repeat, that is by way of judicial sharing, in the context of a commonly encountered problem, of information about why all of this matters.
11. In the circumstances, I allowed Mr Davies to deploy his skeleton argument as a ‘speaking note’ as if delivered orally. That was with one exception. Within the document was a reference and a quotation from a source. This was derived from notes of a meeting. These had never been filed and served in this case, despite several opportunities to place relevant material before the court. I was not prepared to allow that point to be relied upon, in those circumstances. Mr Davies very fairly accepted – when this was pointed out – that it would not be appropriate for him to be able to, in effect, give evidence in that way. The simple solution which we adopted was to treat that part of that paragraph in the speaking note as though it were deleted.