Court of Appeal issues strong warning of costs sanctions for lengthy skeleton arguments

A skeleton argument yesterday

The Court of Appeal has hit out at lengthy and complex skeleton arguments, describing them as the “bane” of commercial litigation and warning that failing to comply with the practice directions on them will result in costs sanctions.

Lord Justice Moore-Bick said it is important that both practitioners and their clients understand that skeleton arguments are not intended to serve as vehicles for extended advocacy.

The comments came in a postscript to Standard Bank plc v Via Mat International & anor [2013] EWCA Civ 490, an appeal against summary judgment for the first defendant against the claimant and setting aside service of the claim form and particulars of claim on the second defendant out of the jurisdiction in Hong Kong.

Lord Justice Moore-Bick said: “Although there were two applications before the judge, they were complementary and in substance this was a relatively straightforward application for summary judgment.

“The hearing before the judge was completed within a day, as was the hearing of the appeal and although a large amount of evidence was filed, it proved possible as a result of co-operation between the parties to produce a single core bundle of moderate length which included all the important documents.

“In those circumstances it is a matter of concern that the skeleton arguments produced for the appeal run to a total of 116 pages, of which by far the greater part (93 pages in all) is made up of the appellant’s skeleton and supplementary skeleton arguments.”

Moore-Bick LJ referred to three cases in the last five years in which the appeal court addressed the issue, in one of which he said Sir Anthony May, then the president of the Queen’s Bench Division, “sounded a clear warning about the risks to our tradition of oral advocacy posed by excessively long skeleton arguments”.

The judge continued: “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.

“In this context I wish to draw attention to the provisions of Practice Directions 52A and 52C, both of which apply to proceedings in this court. Each of those practice directions contains important provisions relating to the nature and content of skeleton arguments. Practice Direction 52C, in particular, contains specific provisions governing their length and presentation.

“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.”

Lord Justice Aikens endorsed Moore-Bick LJ’s postscript. “Overlong pleadings and written submissions – the true ‘skeleton argument’ of bye-gone days no longer exists – which are manufactured by parties and their lawyers have become the bane of commercial litigation in England and Wales,” he said.

“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.”

The judge said “this is not a new problem”, referring to a reported case from 1595 in which a miscreant was imprisoned “until he paid a fine of £10 (a huge sum) to Her Majesty and 20 nobles to the defendant”. The court also ordered him to be led around Westminster Hall whilst the courts were sitting, with the offending submissions around his head.

Lord Justice Aikens concluded: “That sanction against prolix pleaders and submission authors may not be available today, but failure to comply with the letter of the practice direction on written submissions and the failure to heed the need for brevity in pleadings may well lead to strict adverse costs orders.”