A Court of Appeal judge has urged advocates to focus on persuading the judges in front of them and not drowning the court with “excessively long and complex” skeleton arguments, which he described as a “curse”.
Sir Stephen Irwin said that this was one of the causes of “complexity and obscurity in the law”.
Delivering the Professional Negligence Bar Association’s Peter Taylor Memorial Lecture, he identified a series of drivers for that complexity and obscurity, suggesting that advocacy also offered “much of the cure”.
In a colourful address, he said: “Advocacy really is – or it really should be – the art of persuasion. A skeleton argument is not an opportunity to ruminate on the subject in hand, formulating gradually what your case might be.
“Nor is a skeleton argument properly an opportunity to include passages from that pleasing win you had in front of Mr Justice Over-Generous.
“Nor to include all those cases in your standard skeleton which might be sort of relevant: a kind of ‘pick-n-mix’ of authority, just in case the other side say something awkward.
“Nor is the skeleton argument the place to include all those points that might just work if the tribunal is not especially alert on a Friday afternoon close to Christmas.
“Perhaps especially important, the skeleton argument is not a place to include a whole range of points advanced by your instructing solicitor or your corporate client, but which you know in your heart of hearts will never succeed.
“Nor is drafting your submissions an opportunity to impress your solicitor and client with the breadth of your knowledge.”
He recounted how former Lord Chief Justice Lord Judge would cite his sixth-form history master who, in the face of an unnecessarily prolix essay, would mark a rebuke in the margin: APK – ‘anxious parade of knowledge’.
“Every advocate drafting written submissions should have the principle of ‘no APK’ at the front of their minds.”
Irwin LJ continued that there was “a special ring in hell for the advocate who stands up at 10:31 with the words ‘My Lady, My Lords, I have prepared a speaking note which is on the bench’”.
He said: “I have cut my way through the undergrowth of your ill-formed skeleton argument, noting as I go. I have cross-referred to the submissions of the other side. I have reached a provisional view of what might be your good points and a pretty clear view on the duds.
“In order to be sure of one of the latter, I have read an extensive witness statement that came to nothing. Now you have finally thought your way properly through your case and abandoned the duds, or most of them.
“But you have thought of two new points, one of which means that the other side have a legitimate reason to take some instructions, and it now may be in doubt whether the matter can go on today.
“The timetable was already tight. We will not be able to do anything very useful with the 45 minutes they require. You are a viper from the Pit.”
Turning to ways to mitigate the problems, he said the language of the CPR must be “as clear and straightforward as possible”, and suggested whether each part, and potentially subsections of those parts, should have an introductory note.
“An introduction in straightforward language to the overall scheme and purpose of a rule, or part of a rule, might do something to set the litigant in person on the right track when coming to the language of the rule itself.”
Having highlighted the volume of statute and regulation, combined with “the very limited scrutiny afforded by Parliament” – a problem likely to be “greatly accentuated” by Brexit – he said the Government Legal Department faced “a huge weight of responsibility”.
“It seems to me this simple fact needs to be acknowledged in public, and government and Parliament must surely take this on board.
“This responsibility will rest not merely on the small number of parliamentary counsel, but on lawyers scattered across government responsible for drafting and revisions. There is here I believe a long-term problem of capacity which will need to be addressed.”
Irwin LJ said he hoped the ‘Good Law Initiative’ launched by the Office of Parliamentary Counsel in 2013 may be revived and extended.
He added: “There is room for a real effort to make language simple and to avoid cannibalistic drafting; that is to say where new or revised provision makes reference to a former provision which itself may carry reference to, or language from, a yet earlier formulation…
“The Immigration Rules provide many classic examples. The Immigration Rules are, in truth, something of a disgrace.”
In terms of advocacy, it was “not a matter of straightforward mathematical limits on font size, length of submissions and so forth”.
Irwin J said: “The heart of it is that advocates should, please, concentrate on the function of advocacy. Written submissions are not permissible which are simply a regurgitation of the memory, either of the advocate or of the word processor.
“The function of advocacy is to persuade the tribunal. Nothing is persuasive unless it is selective and given emphasis.
“Advocates must have the courage, having thought through the case, to choose the propositions and arguments which really are important, and which truly have a prospect of success. Selection and clarity, backed up only by the necessary case citation, and by cases which are apt in context, will always aid success.
“Anything less focused will irritate and may risk success.”