Poor Quality Skeleton Arguments Criticised by the Court of Appeal

Advocates have been told by the Court of Appeal they should expect severe treatment for burdening the courts with irrelevant and protracted submissions.

Lord Justice Irwin delivered the main Judgment in Harverye v The Secretary of State for the Home Department .

The case involved the dismissal of an appeal of a deportation order made by a Zimbabwe national. Lord Justice Irwin commented at paragraph 33 of the Judgment: “The written submissions from both parties in this appeal are over-long, diffuse and over-complicated.”

Lord Justice Hickinbottom went further in his Judgment to comment on the “unsatisfactory way in which the issues in this case were identified and then dealt with before us. In this case, the issue for the Secretary of State, and in their turn the tribunals, was straightforward and narrow: had there been a material change of circumstances which justified a fresh decision to deport the Appellant? As Irwin LJ has described, this issue was all but lost in the plethora of paper.”

He considered that the Secretary of State should have set out in the Notice of Decision what he considered the material change of circumstance to have been, “However, in my view, the legal representatives cannot avoid all blame. The grounds of appeal, skeleton arguments and oral submissions lacked the required and expected focus.”

He went on to say that grounds of appeal must be set out “clearly and as concisely as possible” and the skeleton argument must set out why a decision is wrong or unjust. The skeleton argument must comply with paragraph 5(1) and (2) of CPR PD 52A, which provides:

“(1) The purpose of a skeleton argument is to assist the court by setting out as concisely as practicable the arguments upon which a party intends to rely.

(2) A skeleton argument must–

    • be concise;

    • both define and confine the areas of controversy;

    • be set out in numbered paragraphs;

    • be cross-referenced to any relevant document in the bundle;

    • be self-contained and not incorporate by reference material from previous skeleton arguments;

    • not include extensive quotations from documents or authorities

As for sanctions for parties who do not follow these rules, the judgment made clear that the courts have a variety of sanctions (including costs orders) at their command.

Deborah Piccos

Vice Chair SAHCA

TV Edwards LLP

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