It now appears settled that the quotation “I would have written a shorter letter, but I did not have the time” dates back to the 17th century and to Blaise Pascal, the French mathematician and physicist. It has at times been attributed to Winston Churchill and Mark Twain, amongst other luminaries.
Similarly, but more recently, the High Court has issued a timely reminder that advocates should devote time to keeping skeleton arguments concise and to the point. The consequences for not doing so can, potentially, be significant.
The case: R (Robert Palmer) v Northern Derbyshire Magistrates’ Court [2021] EWHC 3013 (Admin)
On 12 November 2021, the court (Andrews LJ & Linden J), handed down its judgment in this case. The facts are not particularly relevant to this post. (The court was dealing with claims for judicial review arising from a criminal prosecution brought against the claimants by the Secretary of State for Business, Energy and Industrial Strategy.)
The judgment began somewhat ominously, with the court keen to make “some preliminary observations about the skeleton arguments that were served in both these claims.” (Many lawyers will no doubt have felt the slight chill that descends upon reading such a line in a draft judgment.)
The court went on to note the following provisions in relation to such documents:
- Paragraph 19 of the Administrative Court Judicial Review Guide 2021, of which 19.2.2 provides that a skeleton argument should define and confine the areas of controversy, be cross-referenced to any relevant document in the bundle, and be self-contained;
- Paragraph 14 of the Practice Direction to CPR 54A relating to skeleton arguments, which states:
- A skeleton argument should not include extensive quotations from documents or authorities (paragraph 14.2(1)); and
- The court’s permission is needed before a party can file a skeleton argument exceeding 25 pages (paragraph 14.3).
As the court emphasised, paragraph 19.3.6 warns that a skeleton argument that does not comply with the requirements may be returned, with the proviso that it cannot be re-submitted until it complies. A court may disallow the costs of preparing a non-compliant skeleton argument.
The court noted that it was unfortunate that the Practice Direction had not been followed in a number of ways, including:
- All skeletons were longer the 25 page maximum (one was over 40 pages long).
- Another skeleton replicated lengthy passages from a textbook instead of just stating the propositions of law and providing cross-references.
- Two parties had sought permission to serve a skeleton argument that was longer than 25 pages, but they did so informally by letter to the Administrative Court office, at the same time as serving the documents in question. By then it was almost certainly too late for the requests to be considered by a judge and, if refused, for shorter documents to be prepared and lodged in time.
Furthermore, the case was not in fact a case that required lengthy written arguments. The issue was a ‘short point of statutory interpretation’.
The court emphasised that the Guide and the Practice Direction ‘serve a useful purpose’ and the court stressed how important it was that they be followed.
Comment
It is of course right that advocates must strive at all times to be as concise and as focussed as possible in written documents. Indeed, all relevant rules and practice directions must be followed (unless applications are made on a timely basis to permit a different approach). This applies not just to the Queen’s Bench Division of the High Court, but to all written advocacy.
However, I am sure most advocates will also be familiar with the desire to ensure that ‘nothing is missed’ in a skeleton argument. How often have we ‘adopted our written submissions’ in a relatively short listing, to ensure the court does indeed have before it all the points we need to make?
The key, as ever, with any advocacy is preparation (and preparation, and preparation). It goes without saying that written arguments invariably improve by the time they reach draft number seven. If a draft eight or nine is required to reduce those written arguments to a more manageable length, then it will be essential to go that bit further in our preparation. As several famous figures have pointed out, it takes a lot of time and effort to keep the written word concise. Perhaps if Blaise Pascal had been guided by the relevant Practice Directions, he would have made the time to do so.
