Skeleton Arguments – Not rocket science – Civil – Court of Appeal

Following the hand down of judgement of the Court of Appeal in Inplayer and others v Thorogood [2014] EWCA Civ 1511, advocates have had a further timely reminder that skeleton arguments need to be just that - skeletal.
It is of course recognised that skeleton arguments vary between courts, between areas of law and between civil, family and criminal jurisdictions. The correction received from the Rt Hon Lord Justice of Appeal Jackson was not the first time the author of this article has been corrected for his skeleton arguments.
On one remarkable foray into the High Court, family division, the fact there was even a skeleton argument was the cause of much disgruntlement and refusal to even read the relatively short document setting out the arguments on a highly complex issue relating to access to legal aid and a Hague Convention case. That judge will remain unnamed, but gave a clear indication that she felt it impertinent to bring a document with law in it to her court. The fact that that the rebuke was delivered for a few minutes to the learned friend for the respondent, added at least some amusement factor to an otherwise serious issue.
Going back to civil appeals to the Court of Appeal the guidance on skeleton arguments is of course limited save for the structure. The Civil Procedure Rules (CPR) and its practice directions for Part 52 sets down the size of skeletons. Part 52A paragraph 5 and Part 52C paragraph 31 sets down the expectations of the Court of Appeal civil. 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.
Skeleton arguments 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, and be self-contained. They must not incorporate by reference material from previous skeleton arguments, as well as not including extensive quotations from documents or authorities.

Further the skeleton argument must identify the documents to be relied upon and, where it is necessary to refer to an authority, a skeleton argument must: (a) state the proposition of law the authority demonstrates; and (b) identify the parts of the authority that support the proposition. If more than one authority is cited in support of a given proposition, the skeleton argument must briefly state why.

Paragraph 31 of Part 52C sets down that any skeleton argument must comply with the provisions of Section 5 of Practice Direction 52A and must:

(a) not normally exceed 25 pages (excluding front sheets and back sheets);
(b) be printed on A4 paper in not less than 12 point font and 1.5 line spacing.
(2) Where an appellant has filed a skeleton argument in support of an application for permission to appeal, the same skeleton argument may be relied upon in the appeal or the appellant may file an appeal skeleton argument (Timetable Section 5, Part 1).
(3) At the hearing the court may refuse to hear argument on a point not included in a skeleton argument filed within the prescribed time.

On the 13 October 2014, Jackson LJ issued a similar warning to advocates in Tchenguiz v Director of the Serious Fraud Office and another [2014] EWCA Civ 1333 where he set down in his judgment reasons for not allowing a supplementary skeleton argument which, whilst it was shorter than the original 47 pages being 34 pages with a 15 page annex, was still way over the number of pages allowed, and was in addition to the original document. Jackson LJ said at paragraph 5, “… skeleton arguments of this volume and repetition do not assist the court in its task of resolving the issues between the parties.” The Rt Hon Lady Justice of Appeal Sharp, added further:

“There has been a gross non-compliance with the rules in this case. It should be clearly understood (1) that the rules apply to all classes of litigation and there is no exception for commercial litigation and (2) that length obscures the points which are germane to the resolution of an appeal, rather than assisting in their determination.”

It is not just the Court of Appeal that suffers, in commenting on a skeleton argument the Immigration Tribunal case of Zarour, stated:

One good thing can be said about Mr Vokes' skeleton argument before him, which is that it was short enough to make it reasonably clear how he put his case, even if it did not include this point. This is usually not so with the skeleton arguments of counsel in this field, which are all too often so intolerably prolix that they may be better described as well-fleshed corpses, doing more to conceal than reveal what the case is about.

In Inplayer Jackson LJ, came back to the topic, in respect of a skeleton argument that was 35 pages in length, to speak more bluntly. The rules above were set out, and then the following description:

In essence an appellant’s skeleton should provide a concise, user friendly introduction for the benefit of the three judges who will probably have had no previous involvement in the case. The Skeleton should then set out the points to be argued clearly and concisely, with cross-references to relevant documents and authorities, in the manner prescribed by Practice Direction 52A paragraph 5.

In giving guidance about going about the business of drafting Jackson LJ, suggested “…the task is not rocket science. It requires a few minutes clear thought and planning before you start.”
Skeleton arguments continue to provide the vital start and clear path to the ultimate aim of showing a legal point in the best light. As described above by various judges, concealing the case within volumes of material, simply prevents the arguments from seeing the light of day before the hearing.

Adam Tear, Director, Duncan Lewis, SAHCA committee member