the professional negligence blog

A collaboration between Rebmark Legal Solutions and 1 Chancery Lane

Skeletons in the Courtroom

When I was at law school we only allowed to produce skeleton arguments for moots if they did not exceed four sentences in length. It was no easy task, but it really forced one to be as lexically economical and phraseologically elegant as possible.
However since, I have been encouraged to be far more expansive. I have thence been lead to believe that a skeleton argument is a powerful means of additional advocacy; and one which can give your case an advantage. This is something I still secretly feel in cases where I have produced one for the judge and my opponent has not.
 Lord Justice Moore-Bick however, it seems, would recommend the approach imposed upon me right at the embarkation of my legal career. He has taken the unusual step of adding a post script to his recent judgment in Standard Bank plc v Via Mat International & anor [2013] EWCA Civ 490, on the subject of counsel’s skeleton arguments and suggests that overly long arguments pose a risk to our tradition of oral advocacy in the English and Welsh Courts.
The learned Lord Justice of Appeal commented that the case below was a “relatively straightforward application for summary judgment” listed to be heard in a day, with an agreed core bundle of “moderate length”. He held that in those circumstances skeleton arguments consisting of a combined total of 116 pages was unacceptable. It is fair however to say that this criticism must have been (at least primarily) directed for counsel for the appellant, whose contribution to the total of 116 pages was made up of a skeleton argument of some 93 pages, as compared to Defendant counsel’s (mere?) 24 pages.
The post script cited the recent cases of in Khader v Aziz [2010] EWCA Civ 716; Tombstone Limited v Raja [2008] EWCA Civ 1444, [2009]; and Midgulf International Limited v Groupe Chimique Tunisien [2010] EWCA Civ 66, and the judicial warnings in those cases as to the “risks to our tradition of oral advocacy posed by excessively long skeleton arguments”.
Lord Justice Moore-Bick held:
“26.  …the purpose of skeleton arguments is to inform the court of the essential elements of the parties' submissions and thereby enable it to understand the issues and arguments arising on the appeal. I also expressed the view that the best way in which to alleviate the increasingly onerous burden imposed by unduly long and complex skeleton arguments is for the court to be far more willing than it has been in the past to disallow all or part of the costs of any skeleton that fails to serve that essential purpose.
27.  It is important that both practitioners and their clients understand that skeleton arguments are not intended to serve as vehicles for extended advocacy and that in general a short, concise skeleton is both more helpful to the court and more likely to be persuasive than a longer document which seeks to develop every point which the advocate would wish to make in oral argument...”
He continued to suggest that courts ought to be more prepared to discourage skeleton arguments of excessive length with reference to Practice Directions 52A and 52C, and to penalise verbose advocates in costs.
Comments are closed