Lord Justice Jackson has led the Court of Appeal in issuing a stark warning to advocates over submitting lengthy skeleton arguments, with his fellow judges making it clear that there will be no special treatment of Commercial Court litigation.
The latest court ruling from the ongoing litigation between Robert Tchenguiz and the Serious Fraud Office involved an application by Mr Tchenguiz to rely on a supplementary skeleton argument in an appeal, served one week before the hearing.
Jackson LJ said the rules on ensuring skeleton arguments are concise exist “for a serious purpose, namely to enable the Court of Appeal to deal with its business in a timely and efficient manner”.
He continued: “In the present case, there has been substantial non-compliance on the part of the appellant. The appellant’s initial skeleton argument was prolix and it ran to 47 pages. The appellant now seeks to serve a supplementary skeleton argument 34 pages long, accompanied by an appendix which is 15 pages long. There is a substantial degree of overlap between the two skeleton arguments.
“It would be time-consuming in the extreme to settle down and identify which passages in the supplementary skeleton argument are genuinely new points and which are merely rephrasing assertions made in the original skeleton argument. It seems to me that all the points dealt with in the supplementary skeleton argument were perfectly foreseeable. In so far as they depart from the original skeleton, they could and should have been dealt with at the outset.”
A better course, he said, would have been to prepare a substitute skeleton argument which complied with the rules and submit it to the court and the other parties as soon as practicable after the grant of permission.
He identified 21 paragraphs of the supplementary skeleton argument which ought to be retained “and which should preferably have been included in the original skeleton argument”. He ordered that Mr Tchenguiz be allowed to rely on those, but that whatever the outcome of the appeal, he would not be permitted to recover his costs of either skeleton.
Lady Justice Sharp agreed, saying there had been “gross” non-compliance. She continued: “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.”
Lord Justice Vos also agreed, endorsing “the proposition that the rules are made as much for Commercial and Chancery cases as they are for other cases”.