In England and Wales advocacy is spoken. Arguments are made orally. Yet since Lord Donaldson’s 1982 Practice Note stated that in some cases it “may be desirable to ask for … a skeleton of the argument for both parties” the use of written advocacy has exploded. Courts are regularly provided with skeleton arguments over a 100 pages long. These documents take time to prepare, to read and to consider. As the 1998 Civil Procedure Rules (CPR) codified requirements for written arguments the question now is whether it is finally time for a word limit.
A well-structured skeleton can persuade and influence “before a word is spoken in court”. So says David Pope, barrister and counsel at SNR Denton LLP. Written advocacy “doesn’t just help judges, it persuades them. Judges routinely form provisional views of cases based on their pre-reading … Get a decent skeleton argument under the judge’s nose and an advocate can win a case before a word is spoken in court.” The skeleton argument is now seen as a valuable component part of an appeals process. However, as the value it is afforded has increased so has its length.
In Standard Bank v Via Mat, 93 pages of skeleton and supplementary skeletons were provided from one side. In Midgulf International Ltd v Groupe Chimique Tunisien a 132-page skeleton argument was provided by the appellant’s solicitor advocate. And in Tombstone v Raja a 174-page skeleton was provided.
The concern over the length of skeleton arguments is partly one of time and expense. Pope commented that “lengthy skeleton arguments add substantially to the preparation time of judges and advocates, often with no concomitant saving of hearing time. Judgments tend to get longer too as judges struggle to address every contested point raised in the parties’ written submissions.”
Lord Justice Aikens notes that “This prolixity only adds unnecessary costs; it does nothing to clarify and simplify the issues or to shorten proceedings, which aims should be the objectives of both pleadings and written submissions.”
A common criticism is that the CPR does not provide sufficient guidance. It merely asks for arguments to be advanced “as concisely as practicable”. In Revenue and Customers Commissioners v Ben Nevis (Holdings) Lord Justice Jackson emphasised that “the Court of Appeal works under considerable pressure of time” and that CPR provisions in relation to skeleton arguments serve a serious purpose; the skeleton arguments of the appellant ran to 40 pages, containing 113 footnotes.
A more defined system of guidelines, perhaps containing a word limit, is one option to ensure the brevity of skeleton arguments. The system in the US Supreme Court limits briefs on the merits to 15,000 words.
Generously spaced and fonted this still comes in at around 50 pages. Similar limits could be imposed in England and Wales, though the idea has caused controversy and could have the counter-intuitive effect of the word limit being seen as a target, not a maximum.
The current stance taken by the courts references 52A of the CPR. 52A expressly states that a court may disallow the costs of preparing the skeleton argument if the skeleton does not comply with the CPR requirements.
In Standard Bank plc v Via Mat International, Lord Justice Moore-Bick stated that “the court will expect the requirements of both practice directions to be rigorously observed. Failure to comply with them is likely to be penalised in costs.” In Ben Nevis, Jackson LJ indicated that had the appellant won, the court would have disallowed some or possibly all the costs of their skeleton arguments.
Faced with a growing volume of civil litigation, to what extent will the Court of Appeal choose to penalise parties and disallow costs? Having repeatedly provided warnings and with growing concerns over the increasing length and expense of court cases, it will not be surprising to see sanctions enforced. After all, as Lord Justice Mummery has said, “Skeleton arguments are aids to oral advocacy. They are not written briefs which are used in some jurisdictions as substitutes for oral advocacy.”