WHEN SKELETON ARGUMENTS ARE MEASURED AS A PERCENTAGE OF THE LENGTH OF WAR AND PEACE: IT HINDERS RATHER THAN HELPS YOUR CASE

Following a recent post on the length of skeleton arguments someone kindly sent me a link to the judgment of Commercial Court Judge Adrian Jack in WWRT Ltd -v- Caroson Trading et al, a decision in the Eastern Caribbean Supreme Court.  The skeleton arguments in that case were measured as a percentage of the length of War and Peace.

 “The word count of War and Peace is 587,287 words.

The combined word-count of the claimant’s skeletons is therefore 5.08 per cent of the length of that novel.”

JACK, J [Ag.]: This is yet another case in which one party has served skeleton
arguments of inordinate length.
In AO Alfa-Bank v Kipford Ventures,
I said of the defendant’s skeleton:

“[7] The latter is a closely written 54 pages in single type with about 26,500
words. A similar issue as to the excessive length of skeletons arose in Ali
Ganjaei v Sable Trust Ltd and another,
2 where I said:

“[66] [Counsel] made very extensive written submissions. In this
jurisdiction, parties are expected to serve skeleton arguments and
then develop their submission orally. [Counsel] did not serve a
skeleton. Instead he served a closely typed 46 page document.
The word-count is 19,296. By contrast [opposing counsel’s]
skeleton was 5,840 words long. This was already a fairly fleshy
skeleton, but it is dwarfed by [the other] submissions which were
more than three times as long.

[67] It is not in my judgment appropriate to make written
submissions of such prolixity. It breaches the overriding objective
in multiple ways. First, it forces the Court to allot more of its
resources to the case than is appropriate, because the Court has
to read the submissions: CPR 1.1(2)(e). Second, it imposes
unnecessary additional expense on all the parties: [The party which
is] paying for the submissions, and the other parties, who have to
employ lawyers to read the submissions: CPR 1.1(2)(b). Third, the
intention is to give [that party] an advantage in exposing the judge
to that party’s submissions at greater length than the other parties’
submissions, with the intended consequence that the parties are
not on an even footing: CPR 1.1(2)(a). In fact, if this was the
intention, it fails. It has been recognised since classical times that
in advocacy less is more, but an intended breach of the overriding
objective should not be countenanced. Logorrhoea has no place
in the Commercial Court.”

[8] A reasonable length of a skeleton in a heavy application such as this is
25 pages in 12 point type and one and a half line spacing.”
[3] In the current case, the claimant’s main skeleton argument runs to 59 pages.
Although the line-spacing is one and a half, the type appears to be 11 or 10.5-point
Times Roman. The word count is 25,843 words. The claimant’s supplemental
skeleton dealing with a point on evidence is a further 11 pages. This mercifully is in
a larger type. It comprises 4,012 words. The total word count is therefore 29,855
words.

 The word count of War and Peace is 587,287 words.

The combined word-count of the claimant’s skeletons is therefore 5.08 per cent of the length of that novel.

The filing of skeletons of such inordinate length is particularly surprising, since I had
my assistant write on 19th November 2021 in the case of FG v HJ6
to Dr. Johns,
who jointly submitted the two offending skeletons in this current matter, in the
following terms:
“[The judge] notes that your skeleton argument runs to 62 pages. He has
calculated that there are about 22,300 words in it. This is about 3.8 per
cent of the word count of War and Peace.

This is grossly excessive for a one day hearing. He has no intention of
reading something of such inordinate length: see CPR 1.1(2)(e).
In addition to the case to which he has already drawn your attention, in Von
der Heydt Invest SA v Mex Clearing Ltd,
7 counsel for applicant produced
a 34 page submission for a modest application to produce documents under
CPR 28.16. He again told counsel to resubmit a skeleton of reasonable
length and summarily assessed the costs of the other parties, whose
unfortunate counsel had had to read the missive.
The judge suggests you resubmit your skeleton limited to 25 pages oneand-a-half line spaced in 12 point type if you wish to avoid a similar
consequence.”

[6] If there had been enough time, I would again have required the claimant to resubmit
its skeletons at an acceptable length. However, since I only saw the skeletons over
the weekend, I have had little alternative but to read them. I will, however, consider
applications in respect of the costs incurred by the service of such documents. In
Mex Clearing this included summarily assessing the costs incurred by the other
parties in reading the missive. Other potential orders include disallowing the cost of
preparation of the skeletons and slashing the brief fees of counsel concerned. (This
of course depends on the claimant otherwise being the receiving party in respect of
any costs order.) I shall hear such submissions as the parties wish to make. Any
party seeking a costs order in respect of the time spent reading the claimant’s
skeletons should submit a schedule of the costs claimed.

[7] I should add that, since handing down judgment in the Ali Ganjaei and Kipford
matters, I have become aware that logorrhoea can be a symptom of a recognised
psychiatric disorder, Warnick’s aphasia. Any advocate suffering from this condition
should write to the Court, so that reasonable adjustments can be made in respect
of the disability.