skeleton argument

Skeleton Arguments are documents filed with the Court and exchanged between the parties in advance of a hearing of an application or for the trial in legal proceedings. Skeleton arguments are required for trial, and should be filed in advance of interim applications. They are intended to be a short summary of a party’s submissions and no longer than the case allows.

Skeleton arguments save the court time and facilitate the decision making process by the Court. It does so by providing (1) the background, and (2) a summary of the reasons why the court should find in your favour.

Filing Requirements

In most courts, a skeleton argument is required to be filed by 10.00am the day for the hearing. In some Courts, it is more, such as 2 days in the Commercial Court. The relevant Court Guide informs litigants of the practice the particular court.

Strictly speaking, the documents are not required to be prepared and filed for all hearings. Even at short hearings, a short skeleton argument will assist the judge prepare for the hearing, which must be seen as a good thing.

Contents of a Skeleton Argument

A properly drafted skeleton argument for an interim hearing would ideally contain a number of items. They include:

1. Introduction: state what the application is about, such as:
   “This is the first hearing of an application made under an Application Notice dated [date] of the [Claimant], [name], for [summary judgment/default judgment/an order that the defendant give specific disclosure/an extension of time]”; or
   “This is an appeal of a decision of the decision of Mr Justice [name] made by the Claimant, [Claimant’s Name], which ordered that […].  The Claimant asks the Court to [uphold/set aside] the order”.

2. Time Estimate: a genuine (ie not underestimated in any circumstances) the time to:
   1. prepare the hearing, known as “reading time”; and
   2. the time estimated to be required for the hearing.
3. Application bundle: state whether an application bundle has been filed, so that the judge knows it exists if s/he does not have it;
4. Reading List: a list of documents which the party suggests the court should read to prepare for the hearing;
5. List of Issues: state the issues to be decided by the Court;
6. Case summary: contain a brief summary of the essential facts of the case, if a case summary has not included in the Application Bundle. If a chronology has been filed, the facts recited might be a subset of the chronology;
7. Causes of Action: State the causes of action of the Claimant;
8. The law, which includes:
   1. jurisdiction of the Court which the court is being asked to exercise: provide a reference to the basis of the jurisdiction of the Court which the Application seeks to invoke which entitles the judge to make the order sought in the draft order;
   2. reciting the key text of the relevant law, such as citing case law and any relevant statutes.
9. Submissions: a summary of the arguments which the applicant relies upon to justify the making of the order sought in the draft Order. The law should be applied to the facts of the case, paragraph by paragraph and point by point.
10. Response: respond to the likely position of the opponent.
11. Conclusion: re-states what the party wants to the Court to do, which should mirror the introduction.

Attachments to Skeleton Arguments

Parties are also able to attach to a skeleton argument, where appropriate:

1. A list of the names of the main characters in the litigation, their roles and for whom they give evidence; aka, a dramatis personae;
2. Extracts from relevant cases and/or statutes, if necessary, and only those which are necessary;
3. A case summary, factual chronology or procedural chronology, if (1) not contained in the application bundle, and (2) the dates that events took place are relevant.

Skeleton Argument for Trial

A skeleton argument for trial should also include:

1. a reading list;
2. detailed factual background and argument;
3. list of issues;
4. submissions on remedies which should be awarded or denied, or are not available
5. procedural chronology, if necessary;
6. […].

Notes

A skeleton argument is not intended to be:

1. a recitation of the entire case. It is not intended to argue the case on paper;
2. overly detailed, or more too issues or points. If a skeleton argument is over say 10 pages for other than complex application, it is probably too long;
3. a replacement for oral argument and submissions;
4. handed to the judge in the hearing. It is intended to allow the Court to prepare for the hearing, so that:
   1. Time in court is used effectively;
   2. The parties’ time in court is minimised, thereby saving costs;
5. unstructured.

The contents of skeleton arguments are able to be recycled and further developed from previous skeleton arguments.

Format of Skeleton Arguments

1. Print on one side of the page;
2. Use 1.5 line spacing or double spaced;
3. Large typeface – Time New Roman 12 or Arial 12 are good starting points;
4. Use wide margins to facilitate notes;
5. Numbered paragraphs;
   1. Indent subparagraphs
6. Use headings and subheadings with different emphasis to guide the structure;
7. Be paginated at the bottom of the page;
8. Rather than recite materials which appear in the Application Bundle, cross references should be used to the tab number, page number and paragraph in the application bundle. See paragraph 6 of the example skeleton argument below.

In a unanimous decision of the Court of Appeal in Inplayer Limited v Thorogood [2014] EWCA Civ 1511, Lord Justice Jackson criticised the poor quality and excessive length of skeleton arguments which had been filed with the Court of appeal.

53. [...the rules of court set out the rules for skeleton arguments] These rules do not exist for the benefit of judges or lawyers. They exist for the benefit of litigants, namely (a) to ensure that their contentions are presented most effectively to the court and (b) to enable the court to deal with its caseload expeditiously, bearing in mind that there is always a queue of appellants and respondents waiting for their matters to be heard.
53. 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 [the Civil Procedure Rules]. 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.
54. [...]A good skeleton argument (of which we receive many) is a real help to judges when they are pre-reading the (usually voluminous) bundles. A bad skeleton argument simply adds to the paper jungle through which judges must hack their way in an effort to identify the issues and the competing arguments. A good skeleton argument is a real aid to the court during and after the hearing. A bad skeleton argument may be so unhelpful that the court simply proceeds on the basis of the grounds of appeal and whatever counsel says on the day.

It is important to focus on the relevant facts, issues and arguments for the hearing.

Example Skeleton Argument for Summary Judgment: Format

CASE: [number]

IN THE HIGH COURT OF JUSTICE

CHANCERY DIVISION

INTELLECTUAL PROPERTY ENTERPRISE COURT

BETWEEN

[Party A]

-v-

[Party B]

SKELETON ARGUMENT OF THE [CLAIMANT/DEFENDANT]
HEARING ON [DATE]
Before Mr/Mrs Justice [Name]

Preliminaries

1. This is the first hearing of an application made under an Application Notice dated [date] of the Claimant, Party A, for summary judgment on the claim for damages in the sum of £10.
2. The issue before the Court is whether the Claimant should be granted summary judgment such that judgment is entered in its favour on the Claim.
3. The causes of action of the claimant are negligent misrepresentation and fraudulent misrepresentation.

Time Estimate

4. The Applicant estimates that pre-reading will require 30 minutes and a hearing of up to 1 hour.

Bundles

5. The Court should have received the Application Bundle lodged by the Claimant, which contains:
   1. [extract from application bundle];
   2. Application Notice dated [date] (Tab 1);
   3. Draft Order (Tab 2);
   4. Claim Form (Tab 3);
   5. Particulars of Claim (Tab 4);
   6. Defence (Tab 5);
   7. Reply to Defence (Tab 6);
   8. Response to Request for Further Information and Clarification dated [date] (Tab 7);
   9. Witness Statement of [name] dated [date] (Tab 8);
   10. Exhibit [reference] to the Witness Statement of [name] (Tab 9);
   11. inter partes correspondence (Tab 10);
   12. Certificate of service - Application Notice (Tab 11).

6. Tabs in the Hearing Bundle in the format “Tab [Tab Number]/[page number]/[paragraph]” below. Accordingly reference to Tab 3, page 7, paragraph 8 is referred to “T3/7/8” below. Reference to Tab 3 is referred to as “T3” and tab 3, page 7 is referred to as “T3/7”.

Pre-reading

7. The Court is invited to read:
   1. This Skeleton Argument […];
   2. [The Claimant’s Case Summary];
   3. The Claimant’s chronology;
   4. [Witness Statements];
   5. [any other important document].

The Law

8. The jurisdiction to grant summary judgment is set out in the CPR 24.2:
   “The court may give summary judgment against a claimant or defendant on the whole of a claim or on a particular issue if –
   (a) it considers that – (i) that claimant has no real prospect of succeeding on the claim or issue; or(ii) that defendant has no real prospect of successfully defending the claim or issue; and
   (b) there is no other compelling reason why the case or issue should be disposed of at a trial.”
9. To resist an application for summary judgment, therefore, the Claimant/Respondent must show that there is a real prospect of succeeding on the claim.
10. Numerous authorities have made clear that the Court will not conduct a ‘mini-trial’ at the summary judgment stage (see for example Swain v Hillman [2001] 1 All ER 91 per Lord Woolf MR), and the task before the Court is not to weigh up the merits of the parties’ arguments, but rather to assess whether there is an ‘absence of reality’ in the Defendant’s case (per Lord Hobhouse in Three Rivers DC v Bank of England [No 3] [2001] 2 All ER 513).

The Facts

11. In summary, the Claimant alleges […].
12. The Defendant contends that […].

Submissions

13. The claimant says that the case is unwinnable by the defendant on the grounds that:
    1. […];
    2. […];
    3. […].
14. There is plainly no arguable defence to the claim. 

Conclusion

15. For all these reasons, Summary Judgment should granted to the Claimant on the Claim.