Judge warns of costs sanctions for parties that drowned him in skeletons and bundles

Bundles: plenty more where these came from for Mr Justice Garnham

A High Court judge has described as “absurd” the conduct of parties in an employment dispute that produced thousands of pages in bundles – but only referred to 100 of them – and skeleton arguments more than seven times the expected length.

Mr Justice Garnham warned that he was likely to penalise them in costs.

In ICAP Management Services Ltd v Berry & Anor [2017] EWHC 1321 (QB), the judge was deciding whether to continue interim injunctions placed on the first defendant, the former chief executive of a division of the claimant, that enforced the rest of his gardening leave – until July – and post-termination restraints on competition, dealing with the claimant’s clients and poaching its staff.

The Queen’s Bench Guide says skeleton arguments should not normally be longer than 20 pages of double-spaced A4 paper.

But in preliminary comments in his ruling, Garnham J said the claimant’s turned out to be 151 pages, plus 35 pages of appendices. For the first defendant, the figure was 158 pages, plus eight pages of appendices; for the second defendant (his prospective employer), it was 51 pages, plus six pages of appendices.

“There was, in fact, no significant issue between the two defendants; the provision of two separate skeletons of such length making similar points was singularly unhelpful,” the judge said.

“This was a case with a time estimate of six days including two days for pre-reading. The issue at stake was the enforcement of the terms of an employment contract for something less than three months.

“The overriding objective, set out in CPR 1.1(2), directs the court to ensure that cases are dealt with ‘justly and at proportionate cost’. That includes allotting to the case ‘an appropriate share of the court’s resources’. As I made clear to the parties at the commencement of this hearing, skeleton arguments of the length described above, in a case such as this, are inconsistent with that overriding objective.

“The skill in drafting a skeleton argument lies in the production of a concise outline of the essential elements of the argument which is to be developed orally in court.

“It is evident that the authors of the skeletons in the present case were proceeding on the assumption that they could demand of the court such judicial time as they thought necessary. In that they were mistaken.”

It meant, the judge explained, that the vast bulk of the pre-reading time was devoted to reading the skeletons, rather than underlying documents.

“In fact, in this case, the length and complexity of the written argument served to obfuscate the real issues in the case. In truth, these were not skeleton arguments at all; the arguments contained in these documents were fully fleshed out and dressed in much unnecessary finery.”

He went on to complain about the “grossly excessive volume of documentation” provided.

The primary bundles for use in court ran to 13 volumes. There were also a further 44 lever-arch files of allegedly confidential documentation. Of the 14,000 pages within them, the judge was referred at the hearing to less than 100. He was also provided with six volumes of authorities.

“The provision of that sort of volume of material in a four-day case is absurd. It too is contrary to the overriding objective. It betrays a failure by those acting for all the parties to adopt a sensible and constructive approach to preparation.”

Garnham J warned the parties that, subject to submissions, “a substantial part” of the costs of preparing the skeletons and bundles would be disallowed.

He concluded his preliminary comments by making clear that he did not intend to address “each of the numerous arguments set out in the skeleton arguments, summary cases and closing submissions”.

Garnham J explained: “Were I to do so, this judgment would run for hundreds of pages and would not be delivered until after that period for which the permanent injunctions are sought, thus rendering the exercise pointless, at least for the purposes of this action. I propose to do no more than is strictly necessary to decide the case.”

Daniel Oudkerk QC, Jane McCafferty and Edward Brown, instructed by Macfarlanes, acted for the claimant; Matthew Sheridan and Alexander Robson, instructed by Doyle Clayton for the first defendant; and Paul Goulding QC, Diya Sen Gupta and Kerenza Davis, instructed by BGC Legal, for the second defendant.

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