Back to basics

The culture change demanded by the Jackson reforms is slowly being forced on litigators, and there is increasing evidence of the courts losing patience with parties who have failed to comply with the overriding objective of dealing with cases proportionately. This does not just apply in civil litigation – we have seen judicial complaints in recent months about costs running out of control in the family courts and the Court of Protection, too.

One area, though, where judicial anger – along with costs penalties – seems to be particularly concentrated at the moment is excessive skeletons, pleadings and bundles.

Lord Justice Jackson himself has led the way in complaining about skeletons, and his patience ran out in Inplayer Ltd and another v Thorogood [2014]. The message, he said, had failed to reach the profession: “Mild rebukes to counsel and gentle comments in judgments have no effect whatsoever. Therefore, with regret, I must speak more bluntly.”

The judge explained that the rules governing skeleton arguments for the Court of Appeal were there to ensure that litigants’ contentions were presented most effectively to the court and to enable the court to deal with its caseload expeditiously.

‘Concise and user-friendly’

He said: “In essence an appellant’s skeleton should provide a concise, user-friendly introduction for the benefit of the three judges who will probably have had no previous involvement in the case. The skeleton should then set out the points to be argued clearly and concisely, with cross-references to relevant documents and authorities, in the manner prescribed by practice direction 52A paragraph 5. The skeleton should not normally exceed 25 pages.

“Usually it will be much shorter. In a straightforward case like this, the skeleton argument would, or at least should, be much less than 25 pages.”

The task, he continued, “is not rocket science – it just requires a few minutes clear thought and planning before you start”.

The successful appellant’s skeleton in the case before him comprised “35 pages of rambling prolixity through which the reader must struggle to track down the relevant facts, issues and arguments”. The result? The appellant could not recover the costs of preparing it.

‘Disproportionate’ draft pleadings

Meanwhile, in Hague Plant Ltd v Hague and others [2014], Lord Justice Christopher Clarke suggested that “practitioners have, on occasion, lost sight” of the fact that the aim of pleadings is to help the court and the parties.

He said: “Documents are drafted of interminable length and diffuseness and conspicuous lack of precision, which are often destined never to be referred to at the trial, absent some dispute as to whether a claim or defence is open to a party, being overtaken by the opening submissions. It is time, in this field, to get back to basics.”

The appeal court backed the first instance decision of His Honour Judge Behrens that a party could not re-amend badly drafted particulars of claim. The judge said the draft pleading was “disproportionate in the sense that it would not lead to the litigation being conducted at proportionate cost and would lead to further extensive judicial time being expended at the expense of other litigants”.

Excessive documentation

The situation became even worse in the family case of Seagrove v Sullivan [2014], where the ownership of a £1m property was in dispute. Mr Justice Holman recorded that, shortly before the trial began, the court received five large lever-arch files of documents, which comprised more than 2,000 pages, as well two large bundles and one more ‘slender’ bundle containing 32 authorities.

He said: “As if that were not bad enough… I was, frankly, flabbergasted this morning when the solicitors arrived at the court at about 10.10 am with another large cardboard box containing an additional five large lever-arch files of additional documents.”

The judge stated that this level of documentation was far in excess of the amount set down in the practice directions on bundles and authorities. In a bold step, he then ordered that virtually every single piece of paper be removed and the parties return the following day with a single composite bundle containing not more than 300 pages, together with a bundle of not more than five authorities. Having been urged to reach a settlement, the parties wisely did so overnight.

The message is clear. If you want to conduct gold-plated litigation, then you do so at your own peril. SJ

Sue Nash is chair of the Association of Costs Lawyers