Slimming for skeletons

Daphne Perry suggests ways to make a fleshy skeleton more appealing to the judge.

Question: You are writing a skeleton argument. How long should it be?...
 


A 15 pages or less.
B 20 pages or less.
C 25 pages or less.
D 50 pages or less.
E As short as possible.
(Answer at the end of the article.)

 

Judges threaten costs penalties

In May 2013, seven appellate judges, including the Master of the Rolls, condemned skeleton arguments exceeding the 25-page maximum allowed in the Court of Appeal (see box, Vital statistics). These were deployed not by incompetents but by experienced QCs in big commercial cases. Aikens LJ called overlong pleadings and skeletons “the bane of commercial litigation”; Jackson LJ and the Master of the Rolls called this a “widespread malaise” and invited all advocates with an appeal pending to review their skeletons with a view to avoiding costs sanctions. No one asked for their costs of producing these skeleton arguments, but the judges had expressly threatened to refuse any such request.

Vital statistics

93 pages: won the appeal but the court criticised the skeleton as prolix and threatened to deduct its costs. The parties agreed costs, including the amount, so no order was made. The respondent’s argument was only 23 pages; the hearing lasted a day. Standard Bank Plc v Via Mat International Ltd [2013] EWCA Civ 490, 3 May 2013; Moore-Bick LJ, Aikens LJ, David Richards J.

40 pages, 113 footnotes and still failed to summarise the facts and arguments deployed at the hearing. Lost the appeal, but the court would have disallowed some or all of the skeleton’s costs if it had won.
Ben Nevis (Holdings) Ltd v HMRC [2013] EWCA Civ 578, 23 May 2013; Jackson LJ (whose comments were endorsed by Lord Dyson MR), Lloyd Jones LJ, Floyd LJ.

Are costs penalties imposed?

Aikens LJ cited the case of Richard Mylward, the prolix pleader, who in 1595 was fined £10 and ordered to pay another £8, 8s 4d in costs (Mylward v Weldon (1596) Tothill 102, [1595] EWHC (Ch) 1). He was also paraded around the courts with the offending document around his neck. Adjusting for inflation is not easy, but one estimate, based on the price of gold, puts the fine at over £12,500 and the costs at just under £10,000.

In recent years, judgments complaining of long skeletons, and threatening costs penalties, are common (see Khader v Aziz [2010] EWCA Civ 716, Midgulf International Ltd v Groupe Chimique Tunisien [2010] EWCA Civ 66, Tombstone Ltd v Raja [2008] EWCA Civ 1444, In re X and Y (Bundles) [2008] EWHC 2058 (Fam)). Judgments citing Mylward’s case, or actually imposing a costs penalty, are not. A search on Westlaw for “skeleton”, “prolix” and “costs” reveals  a vexatious litigant in person ordered to pay indemnity costs (R (Gray) v Bristol Crown Court [2012] EWHC 2442 (Admin)), a barrister’s “deplorable” advocacy reported to the Legal Services Commission (Gahie v Home Secretary [2003] EWCA Civ 611), but no costs orders against competent barristers.

Is there another remedy?

Maybe costs are not an effective sanction for poor advocacy. They are too remote, hit-or-miss, and directed primarily against the client, who is not the offender.

Maybe the threat, made in a published judgment, is the best remedy currently available – a public embarrassment to the advocate and the strongest possible hint to waive their fee for the skeleton. But a public reprimand is unlikely to become routine; and the court’s previous threats have not fixed the problem.

Perhaps a rule change in the Court of Appeal might force advocates to honour its 25-page limit or ask the court for its comments. An advocate whose skeleton was over the limit could be made to pay a £500 deposit to lodge it, the same deposit candidates pay to stand in a general election, repayable only if the court certifies the skeleton was useful (or if the appeal ends without a hearing).

Meanwhile, advocates should be much more concerned not to annoy the judge.

Short is good; shorter is better

A skeleton argument is a golden opportunity for advocacy. Leggatt LJ told us; “Although no records have been kept, it is comparatively uncommon for members of the Court to change their minds about whether to dismiss or allow an appeal, once they have read the skeleton arguments” (The future of the oral tradition in the Court of Appeal, (1995) 14 CJQ 11).

What could turn the gold to ashes quicker than a skeleton that annoys, tires or frustrates the judge? James Hunt J, in an article for Counsel, called this “a negligent own goal” (The Anatomy Lesson, February 2002, pp 18-19). Those responding to an over-long skeleton are therefore wise if they refuse to answer every point, keeping their own submissions shorter and clearer than ever. The judge may turn to their skeleton to explain the whole case.

Appeal judges keep telling us they value a skeleton that tells them, in their limited reading time, what the case is about and the essential points counsel wish to make. They emphasise the skeleton’s original function as the note from which counsel addresses the court, elaborating upon (or abandoning) each point as they go. Trial and appeal judges have told us what they want, through Practice Directions, court guides, judgments, and the pages of this magazine (see box). Every time, they ask for brevity.

Surely every reader of Counsel can write a good skeleton argument? The bad writers are not spending their commuting time reading instructive articles on professional practice. I assume that the contents are well-selected, logically organised, legally relevant, accurate and convincing.

However, it would be wrong to assume that these skeletons are all as concise as possible. Legal writing is rarely that concise. Most legal documents can be cut by a third without loss of meaning*. The exercise removes duplication, exposes and removes ambiguity, and forces the writer to clarify the argument. The result is a better and stronger argument, as well as shorter.

What judges want in a skeleton

  • James Hunt J, “The Anatomy Lesson”, Counsel magazine, February 2002, page 18-19.
  • Practice Directions: PD 30A (family appeals) paras 5.12 to 5.22; PD 52A (appeals) para 5; PD 52C (Court of Appeal) para 31; PD 54A (judicial review) para 15; PD 62 (arbitration) paras 6 and 12; Consolidated Criminal PD paras II.17 and IV.36.4.
  • Court guides: Commercial Court Guide 2013 J6.4 to J6.5 and App 9 Part 1; Chancery Guide 2013 paras 5.13, 7.27, 7.28, 14.5, 14.8 and Appendix 7; Mercantile Court Guide 2012 para 8.11; Queen’s Bench Guide 2011 paras 7.11.10 to 7.11.12. Competition Appeals Tribunal Guide 2005 para 15.

Slimming exercises

  • Get straight to the point. State the question for the court, and put your best argument first.
  • Cut your weakest argument(s) to one line plus the references.
  • Cut sentence length. Cut or split any sentence over 2 lines long.
  • Edit out the verb “to be”. Hunt down is, am, are, was, were, be, been, being and, where you can, put the same point another way. This reduces passive verbs, nominalisations and other wordy phrases. Your writing will become livelier and more readable, as well as shorter.
  • Edit out “of” – another indicator of wordy writing.
  • Cut more. Cut to the max. Cut every spare word. Use a computer editor (StyleWriter or WordRake) to help identify verbiage.
  • In the space you create, add more headings. Make them accurate and informative, giving the gist of your argument in a series of one-liners.

Answer: E (as short as possible). The other figures are the usual maximum in applications to appeal against an arbitration award (A); Queen’s Bench and Chancery trials and heavy applications, and hearings in the Competition Appeals Tribunal (B); appeals to the Court of Appeal (C); and Commercial Court trials (D).

* If you think your documents are an exception, try sending me a page, and we’ll see. Email daphne.perry@clarifynow.co.uk.

Daphne Perry is an ex-barrister, now a trainer, writer and consultant specialising in plain English for law and business.

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