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How to structure a skeleton argument...

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Skeleton Arguments What is a ‘Skeleton Argument’? A Skeleton Argument is a written outline of the arguments which you will advance orally at a hearing. It should summarise the points you will want to make when you address the Judge.

Purpose and Reason The purpose of a Skeleton Argument is: 1. To enable the Judge reading the papers before the hearing to understand what the case is about; 2. To focus the Judge’s attention on the central features and important evidence; & 3. To save time at the oral hearing so that you do not have to spell out, at dictation speed, your propositions of law, the authorities on which you rely (with the spelling of the parties’ names) and the page and paragraph references in the evidence on which you rely.

Writing a Skeleton Argument Why is it called a ‘Skeleton Argument’? Because it is meant to be brief and a summary only of the points you will want to make at the hearing. It is the ‘bare bones’ of your argument. You will ‘flesh out’ the detail of that argument orally in front of the Judge.

Why should I write a Skeleton Argument? There are three reasons. 1. A Skeleton Argument is usually required in High Court proceedings. Both the Queen’s Bench and Chancery Guides (White Book, Vol 2, section 1) require you to lodge a Skeleton Argument in advance of the hearing. The Court of Appeal and the specialist courts have similar requirements. In the County Court directions for trial may include a requirement that you lodge a Skeleton Argument before the hearing. But even if no order has been made, a Judge sitting in the County Court will expect a barrister to produce a Skeleton Argument. 2. It aids your preparation. The discipline of typing out the propositions you will advance focuses your mind on what your case is; and makes you identify clearly 1

the legal basis of your argument, with correct references to legislation and caselaw, and where exactly the evidence you rely upon is to be found in the papers. 3. It gives you an early opportunity to explain to the Judge what you want the Judge to do and why the Judge should decide the application in your favour. You get two opportunities to persuade a Judge to decide in your client’s favour, once on paper and once orally. You should take advantage of each opportunity and, even if only subconsciously, aim to impress the Judge.

Requirements Are there any requirements for my Skeleton Argument? Yes, they are contained in the various Court Guides in Civil Proceedings and under a Criminal Practice Direction in criminal proceedings. Once embarking upon writing a skeleton argument as a student who will be assessed on this skill you will also naturally want to comply with the requirements in the assessment criteria laid down by the BSB for writing a skeleton argument. They are as follows: Content of skeleton argument (20%) • Identifies relevant issues of law and fact and makes clear to the court how they want them to be decided. • Sets out a sustainable argument on each issue • Cross-refers to the evidence Structure of skeleton argument (10%) • Written in clear grammatical English • Is concise and accurate • Complies with appropriate formalities Looking at the Guides first, somewhat irritatingly, each Court Guide is expressed in different words. But the general approach which all of them require is the same. The purpose of the Guides is to explain to parties to litigation in those courts what the Judges there expect them to do; see paragraphs 1.1 & 1.2 of the Queen’s Bench Guide and paragraphs 1.14 & 1.15 of the Chancery Guide (White Book Vol 2, paras 1A-2 & 1B-2). Unlike the CPR, the Guides do not have the force of law (White Book Vol 2, para 12-44). But an advocate who ignores the applicable Guide can expect a frosty reception. Paragraph 9.1.1 Paragraph 9.1.1 of the Queen’s Bench Guide (White Book, Vol 2, para 1B-93) reads, 2

A skeleton argument should; 1. concisely summarise (i) the nature of the case and the relevant background facts; (ii) the issues to be determined; and (iii) the party’s submissions in relation to each of the issues (where appropriate by reference to the relevant paragraphs in the statements of case), 2. contain a reading list of core documents or parts of documents which it would be helpful for the judge to pre-read and an estimate of the time it will take the Judge to read, 3. cite the propositions of law relied upon with reference to the main authorities relied on, 4. be as brief as the issues allow and not normally be longer than 20 pages of double-spaced A4 paper, 5. be divided into numbered paragraphs and paged consecutively, 6. avoid formality and use understandable abbreviations, and 7. state the name and contact details of the advocate(s) who prepared it. Paragraph 21.80 Paragraph 21.80 of the Chancery Guide (White Book, Vol 2, para 1A-175) reads, A skeleton argument is intended to identify both for the parties and the court those points which are, and those that are not, in issue, and the nature of the argument in relation to those points which are in issue. It is not a substitute for oral argument. Every skeleton argument should: 1. identify concisely: a. the nature of the case generally, and the background facts insofar as they are relevant to the matter before the court; b. the propositions of law relied on with references to the relevant authorities; c. the submissions of fact to be made with reference to the evidence; 2. be brief as to the nature of the issues; 3. be in numbered paragraphs and state the name (and contact details) of the advocate(s) who prepared it; 4. avoid arguing the case at length; avoid formality and make use of abbreviations, e.g. C for claimant, A/345 for bundle A page 345, 1.1.95 for 1st January 1995 etc. The consistent theme of all the Court Guides is conciseness and brevity. The requirement in criminal courts in cases before the Court of Appeal (Criminal Division), the Crown Court and the magistrates’ courts are set out in the Criminal Practice Directions 2015 Division XII, General Application, D.17- D23. Summary of my Argument Can I produce something longer than a concise and brief summary of my argument? 3

Emphatically, No. Do not succumb to the temptation to produce a Skeleton Argument that is longer than necessary and which does not conform to the guidance. The BSB assessment criterion under the heading, ‘Structure of a skeleton argument’ requires concision for very good reasons. It may seem counter-intuitive to you to be told to produce a short document. Throughout your education you have probably been encouraged to be thorough in your work and criticised if your efforts are short and incomplete. From time to time some advocates, even experienced ones, produce documents headed ‘Skeleton Argument’ which are longer than the guidance. Some clients may feel short changed if what their barrister sends to the court is thought to be too short, especially if the other side produces a longer document. In some other jurisdictions (especially USA) there is a tradition of written briefs which set out the arguments at length and where the length of the document is often regarded as a virtue. Accordingly, some clients from those jurisdictions and their local lawyers expect the same approach from their barrister here in the UK. If, for whatever reason, you feel tempted to depart form the guidance, you should bear in mind comments which have been made by Judges in the Court of Appeal in cases in which advocates produced Skeleton Arguments regarded by judges as too long. Extracts are contained in the Advocacy Handbook. Please note in particular the passages highlighted in bold.

Formalities What formalities should the document comply with? Under the heading, ‘Structure of a skeleton argument’ within the BSB assessment criteria, there is a requirement that all formalities are complied with. Consider this example:

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Title - It should contain the title of the action in the same form as the heading you would use for a Statement of Case. Parties - It should then indicate the party on whose behalf the skeleton is lodged, e.g. SKELETON ARGUMENT ON BEHALF OF THE [CLAIMANT / DEFENDANT] The reader should not have to guess whose Skeleton Argument it is. (Amazingly, this is not always apparent from a reading of some documents!) Spacing - The document should be typed with double-spacing. Font size 12 or above is recommended. This makes it easier for Judges to read and annotate. That in turn makes it easier for the Judge to incorporate the points you have made into the judgment. You want your best points to leap out of the page. Page numbers - Page numbers should be inserted at the foot of the page.

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Sub-headings - Many barristers use sub-headings to make the document easy to follow. The headings you use will depend on the nature of the application, but might, for example, include some or all of the following: ‘Introduction’, ‘Factual Background’, ‘Issues’, ‘Evidence’, ‘Submissions’, ‘Conclusion’. Ending - At the end you should put your name and the date you complete the document. You should also include your Chambers’ address. For work at the University of Law you should insert a fictitious Chambers address. Two further requirements under the BSB assessment criteria under the heading, ‘Structure of skeleton argument’ are that the skeleton should be written in clear grammatical English and be accurate.

What you want the Judge to read Set out what you want the Judge to read and where in the bundle(s) those documents are. Give the Judge the page refences so that the documents you want the Judge to read can be easily found.

Tell the Judge how long it will take to read these documents State how long you think the Judge will need to read the papers before the hearing. This is often underestimated. Do not assume that your Judge will absorb all the detail by osmosis. If in doubt as to how long to put in, ask yourself how long it took you to read the papers.

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Content What should go into the Skeleton Argument? Having considered the formalities let us now turn to the content of the skeleton argument. The assessment criteria have three requirements for the content of a skeleton argument, that is: 1. Identifies relevant issues of law and fact and makes clear to the court how they want them to be decided 2. Sets out a sustainable argument on each issue 3. Cross-refers to the evidence The content of your Skeleton Argument will always be conditioned by what you consider to be most likely to be persuasive. But in general, you should cover the following in order to meet those criteria: What you want the Judge to do State, preferably early, what order you seek or what your stance is in relation to the application, e.g.  •

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‘This is an application by the Defendant for specific disclosure of documents under CPR 31.12’; or ‘The Claimant accepts that the documents in categories (1)–(4) in the application notice should be disclosed but resists disclosure of the documents in categories (5)-(8).’; or ‘The Claimant opposes the Defendant’s application.’

Summarise the facts Keep your summary of the facts brief. The Judge has to decide the application on the evidence, not your reformulation of it. If you try to set out the facts at length, one of two things will happen. Either you will just copy out what is said in the evidence – in which case you are just wasting paper by duplicating what is already in the evidence. Or you will try to restate evidence in different words – in which case you are changing what the evidence says. You may then be accused of misrepresenting the evidence to the Judge in your Skeleton Argument. Your summary will be assisted if you have also produced a chronology; see under the heading ‘Chronology’ below. You can then say, ‘A Chronology, listing the material dates and events, is attached to this Skeleton Argument.’

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Set out your propositions of law, and cite your authority for those propositions correctly •

Set out the propositions of law you advance, citing, in general, no more than one authority (your best) for each proposition. You should familiarise yourself, and follow, the requirements of the Practice Direction (Citation of Authorities) [2001] 1 WLR 1001 (White Book, Vol. 1, para B3-001) in particular paragraph 8.1 & 8.2, which discourages the citation of excessive authority. The point is also made emphatically by the Court of Appeal in R v Erskine [2009] EWCA Crim 1425; [2010] 1 WLR 183 at [63] - [77]. Remember that whenever you refer to an authority you should indicate the page or paragraph numbers which state the proposition on which you rely; note especially the wording, ‘and the parts of the judgment that support that proposition’ in paragraph 8.1 of the Practice Direction.

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For each authority you should also comply with the Practice Direction: Citation of Authorities [2012] 1 WLR 780 (White Book, Vol 1, para B14-001). Paragraphs 5 – 10 of this Practice Direction tell you which Law Report reference you should use. In crime, the Criminal Appeal Reports and the Criminal Appeal (Sentencing) Reports can be used as an alternative to the official Law Reports; Criminal Practice Directions; General Application CPD XII, Citation of Authority D.6(i) (Blackstone supplement, para CPD-X11.D).

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In addition to the Law Report reference, you should give the neutral citation that has been given to all Court of Appeal judgments since January 2001 and all High Court judgments since January 2002; Practice Direction (Judgments: Neutral Citations) [2001] 1 WLR 346 (White Book, Vol 1, para B6-001 on Westlaw).

So your proposition of law and citation of a case would read something like this, ‘A contractual term stating that the contract may not be amended save in writing signed on behalf of the parties is legally effective. MWB Business Exchange Ltd v Rock Advertising Ltd [2018] UKSC 24; [2019] AC 119 at [1] & [10] - [15].’

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Provide marked up copies of your authorities Attach copies of your authorities, with the passages you rely upon marked up. In the Court of Appeal it is a requirement that you mark the passages by a vertical line in the margin (52C PD 29(2)). The same requirement is not stated in the Queen’s Bench and Chancery Guides, but it is best practice to mark the passages in some way that makes them easy for the reader to find.

Refer to the evidence you rely upon Emphasise the particular points on which you rely, with supporting references to the relevant passages in the witness statements or documents. For example, • •

‘The Applicant draws attention in particular to the following facts:’ ‘The Respondent relies in particular on the following pieces of evidence:’

You can then list out the particular pieces of evidence (cross-referenced to the documents) which you say should lead the Judge to decide the application in your favour. You are required to cross-refer to the evidence as part of the assessment criteria. This is where brevity really helps you. If you can get the Judge to read in advance those passages in the evidence which are your strongest points, your oral advocacy will be easier – you are more likely to find that the Judge comes into court favourably disposed to your client’s case (and possibly favourably disposed to you as well). But if you best points are tucked away in a much longer document, the Judge may not spot them or appreciate their significance until make your oral submissions.

Conclusion Conclude by stating what order you want, e.g. • •

‘The Defendant therefore asks for an order for disclosure of documents by the Claimant in the terms set out in the draft attached to the application notice.’; or ‘The Claimant therefore asks that the Defendant’s application be dismissed.’

What should I do when I have finished writing my Skeleton Argument? As with any document, proof-read your work for any spelling, grammatical, punctuation and arithmetical errors. Check that what you have written complies with the requirements of the applicable Court Guide. Cut out any unnecessary words. Be ruthless. 9

For example, remove phrases like ‘It is submitted that …’ They are unnecessary. The whole document is an outline of your argument, and is entitled that way; you do not need to say that what you have written is what you submit.

Chronology Are there any other documents that I need to produce for the hearing? Yes. The most important is a chronology. The Chancery Guide (para 21.83), Queen’s Bench Guide (para 9.108) and the Criminal Practice Directions (para D.20) encourage parties to produce a chronology (White Book, Vol 2, paras 1A-177 & 1B92; Blackstone supplement CPD.XII.D). This document should be in three columns. Consider this example

1. The first column should set out the dates of events referred to in the documents and relevant to the application before the court. Obviously, these should be in chronological order. You should include the dates of events in the litigation, e.g. issue of the Claim Form, date of the application to the court, dates of witness statements, etc. 2. The second column should contain a brief description of what happened on that date. For example, in a road accident case, ‘Date of collision’; or in a case arising out of a written contract, ‘Date of contract’. 3. The third column should contain a reference to the page in the evidence and other papers which refer to that event. Paragraph numbers in witness statements should also be given. Your description in the chronology of the events should be non-contentious; Chancery Guide para 21.83 & Queen’s Bench Guide para 12.3.6 (White Book paras 1A-177 & 1B-92). So, in a claim alleging misrepresentations by the seller of a car, the Claimant’s chronology should not say ‘Lying Defendant makes fraudulent misrepresentations to honest Claimant about the condition of the car’. It should say, ‘Meeting between Claimant and Defendant’. This can then be cross-referenced in the

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third column to the paragraphs in the witness statements that deal with the disputed conversation.

There are two reasons for preparing a chronology. 1. It helps your preparation. The evidence typically will be contained in witness statements and documents. Sometimes letters and emails will have been put into chronological order. But each witness will deal with his or her involvement in their own statement. So, in order to see what has been said about a particular incident it will be necessary to look at different pages in the bundle. And supporting evidence, such as invoices for expenditure and bank statements or other accounting documents, may be in different parts of the papers provided for the hearing. Listing the events in chronological order helps you understand better what happened and where there are conflicts of evidence. It can then be easier to identify points which you can use to your advantage. A paragraph in a witness statement may look credible when read on its own. But when it is read in the context of what has gone before and what happened after, it may become apparent that what the witness says cannot be right; or at least that it sounds improbable. By putting the statement in its chronological context you may be able to make a point more forcibly about the lack of credibility of the other side’s evidence and the other side’s case as a whole. Of course, the exercise of setting out the events chronologically may reveal weaknesses in your own case. But it is better to know the weaknesses in your case sooner rather than later. You can then advise your client of the need to consider settling the case. And if you know what your weak points are before the hearing, you can think before the hearing about what you are going to say about that aspect. 2. Judges like to be given a chronology. Every judgment you have read probably included a statement of the facts of the case, set out in chronological order. Your chronology is likely to be the first step in providing the judge with a structure for the factual part of ...