Oral arguments should follow skeleton’s ‘road-map’, judge warns

Road-map: “Unheralded scenic diversions”

A High Court judge has complained about a “growing trend” of advocates departing significantly from the case they set out in their skeleton argument, after making one who did so make further written submissions.

Mr Justice Turner also dismissed what he described as the “Project Fear” approach of one of the counsel before him.

He was deciding on which of two creditors was entitled to the benefit of a payment made by a debtor to an enforcement agent.

“The matter came before me on 21 March 2019 and things got off to an unpromising start,” the judge said.

“Counsel for the applicant referred to what he described as a ‘road-map’ through which he intended to guide me in the course of his oral submissions.

“Unhappily the road-map followed a markedly different path than that which had been laid out in the written skeleton argument which had preceded it and, although the intended destination was the same, the new route now included a number of unheralded scenic diversions through an unfamiliar landscape.”

Turner J said oral submissions should be seen “primarily as the means by which arguments already articulated in outline in the skeleton arguments are to be fleshed out, refined and tested”.

He continued: “Perhaps my experience is unrepresentative but there appears to me to be a growing trend for advocates to present cases orally in a way which bears only a passing resemblance to the structure earlier laid out in their written submissions.

“In cases such as this, in which the point in issue is one of pure law and not without complexity, it is unhelpful for oral arguments to depart significantly from their written predecessors.

“Naturally, occasions will arise when the immediate anticipation of a hearing concentrates an advocate’s mind wonderfully and thus generates freshly minted submissions.

“Of course, the court will indulge such late inspirations as far as it is practicable so to do. But sometimes, as in the instant case, this is not possible.”

The judge said he could not “altogether exclude the possibility that my struggles to follow counsel’s oral submissions were attributable to a disappointing and unforeseen lack of mental agility on my part and, if so, it is an explanation which I would readily forgive him for not articulating in open court”.

But he said that, whatever the reason, he declined to start writing his judgment until he had received further written submissions “more closely reflecting counsel’s oral ‘road-map’”.

Turner J added: “The fact that my invitation for such further input has now prompted the parties to consolidate their representations in over fifty further pages of written submissions in small font leads me, albeit conveniently, to believe that my request was entirely justified.”

Later in the ruling, under the heading “Project Fear”, the judge said: “The time now comes when, as Lord Reed put it in Cox v Ministry of Justice [2016] AC 660 at para. 46, ‘… like the Fat Boy in The Pickwick Papers, counsel sought to make our flesh creep’.

“Thus the applicant seeks to persuade me that the consequences of finding against him would be to introduce dire and immediate complexity and unfairness into the process of enforcing writs of control.

“The first and obvious point to be made is that where the legal position is otherwise clear, as I here find it be, then the practical consequences must lie as they fall. But in any event, I am not satisfied that the dysphoric predictions of the applicant are, in any event, compelling.”

After going through the detail of them, Turner J concluded: “The complete absence of evidence that this has given rise to any difficulties in practice supports the conclusion that the applicant’s expressed fear are more imaginary than real.”

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