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Overly long skeleton arguments could lead to costs sanctions, warns judge

Parties who present the court with "excessively long" and complex skeleton arguments before a hearing could be penalised, the Court of Appeal has warned.10 May 2013

Commenting at the end of a recent court ruling, Lord Justice Moore-Bick said that skeletons were "not intended to serve as vehicles for extended advocacy". The prescribed "length and presentation" of these arguments, as set out in the Civil Procedure Rules (CPR), should be "rigorously observed", he said.

The CPR requires parties to civil appeals to set out their arguments in advance "as concisely as practicable". Practice Direction 52A, which sets out general provisions for appeals, expressly states that a court will not grant costs which relate to preparing a skeleton argument which "does not comply" with its requirements.

In a postscript to a longer ruling, Lord Justice Moore-Bick said that it was a "matter of concern" that the parties had between them produced 116 pages of skeleton arguments in what was a "relatively straightforward application".

"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," he said.

"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," he said.

Lord Justice Aikens endorsed the judge's conclusions in a note of his own, describing "overlong pleadings and written submissions" as "the bane of commercial litigation".

"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," he said.

Litigation expert Katharine Davies of Pinsent Masons, the law firm behind Out-Law.com, said that the judge's comments were "very sensible" and would "no doubt be supported by the majority of the legal profession".

"Whilst lengthy and complex skeleton arguments may at first sight be providing a client with the best possible case preparation, they are generally counterproductive and not infrequently the result of overzealous word processing for which the client pays dearly," she said.

"Proper consideration and planning of a case to produce a concise and well-argued skeleton argument will not only benefit the clients' presentation of the case in front of the tribunal, but will be better received and undoubtedly more cost-effective," she said.