Skeletons are not rocket science: key points

Inplayer Ltd (formerly Invideous Ltd) and others v Thorogood

In a remarkable judgment handed down on 25 November 2014, the Court of Appeal upheld an appeal against a contempt of court decision of Mrs Justice Rose due to a number of admitted procedural irregularities, which amounted to breaches of the defendant’s ECHR article 6 right to a fair trial.

Having upheld the contempt appeal, Lord Justice Jackson, giving the court’s leading judgment, was highly critical of the appellant’s skeleton argument, describing it as 35 pages of ‘rambling prolixity’, and issued a stark reminder to litigants and their lawyers regarding the proper approach to preparing these documents.

Background to the appeal

In brief summary, the claimants had applied to commit the first defendant to prison for contempt of court for breaches of a court order that included prohibitions against competing against the first claimant’s business. The committal application was heard at the same time as the trial of the main action and the defendant was un-represented. Mrs Justice Rose rejected the allegations of contempt advanced by the claimants, but found two other contempts proved on the basis of evidence given by the defendant during the hearing. The defendant was subsequently sentenced to a term of imprisonment. On appeal, the Court of Appeal held that the judge’s decision on contempt could not stand where the defendant had not been informed, prior to judgment, of the allegations of contempt that had been found proved, he had not been told of his right not to give evidence, nor had he known of his entitlement to legal aid.

Accordingly, the judge’s findings of contempt were quashed.

Key points on appellant skeletons

The message from the Court of Appeal is crystal clear: skeleton arguments must be prepared in accordance with CPR PD 52A para 5, CPR PD 52C, paras 31 and 32 as reinforced by guidance provided by the court. Failure to do so will have an impact on a successful party’s ability to recover its costs of preparing the skeleton (a sanction applied in this case) and may result in a very public dressing down for the responsible drafter.

Jackson LJ felt compelled to comment ‘more bluntly’ on the poor quality and excessive length of some skeleton arguments as ‘[m]ild rebukes to counsel and gentle comments in judgments have no effect whatsoever’. It is important that practitioners pay heed to Jackson LJ’s comments and comply with the relevant provisions of the CPR on skeleton arguments.

The following essential points for the preparation of an appellant’s skeleton were identified by Jackson LJ in a per curiam conclusion to his judgment:

  • it should provide a concise, user friendly introduction for the benefit of the appeal judges who are unlikely to have had any prior involvement in the case
  • it should set out the points to be argued clearly and concisely, with cross references to relevant documents and authorities, in the manner prescribed by CPR PD 52A, para 5
  • it should not normally exceed 25 pages and will usually be much shorter (on the facts, Jackson LJ stated that the skeleton should have much less than 25 pages)

Jackson LJ stated that the task of drafting a skeleton ‘not rocket science’; it just requires a few minutes clear thought and planning before starting.

He commented that the provisions of the CPR set out above exist for the benefit of litigants (not for judges or lawyers) to (a) ensure that their contentions are presented most effectively to the court and (b) to enable the court to deal with its caseload expeditiously.

A full report on the decision, including its committal aspects, is available to Lexis®PSL Dispute Resolution subscribers at Inplayer Ltd (formerly Invideous Ltd) and others v Thorogood [2014] EWCA Civ 1511; [2014] All ER (D) 256. Click here for a free trial.

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