Working Theory

by Michael Reed


I do employment law for the Free Representation Unit.


michael at


Skeletons, fleshy corpses and the Court of Appeal

09 May 2013

The Court of Appeal is distressed that the skeletons it gets tend to swell into fleshy corpses. In Standard Bank v Via Mat they received 93 pages of skeleton and supplementary skeletons from one side, leading Lord Justice Moore-Bick to remonstrate that ‘the purpose of skeleton arguments is to inform the court of the essential elements of the parties’ submissions and thereby enable it to understand the issues and arguments arising on the appeal’. Skeleton arguments are ‘not intended to serve as vehicles for extended advocacy’.

These comments were reinforced by Lord Justice Aikens who referred to the case of Mylward v Weldon. In Mylward, a 16th century case, an unfortunate man had a hole cut in the centre of his ‘engrossed replication’ of ‘six score sheets of paper’ which was then hung around his neck before he was paraded about the courts.

Very similar remarks have been made in other cases. In Tombstone v Raja Lord Justice Mummery, in response to a skeleton argument of 174 pages, said:

We remind practitioners that skeleton arguments should not be prepared as verbatim scripts to be read out in public or as footnoted theses to be read in private. Good skeleton arguments are tools with practical uses: an agenda for the hearing, a summary of the main points, propositions and arguments to be developed orally, a useful way of noting citations and references, a convenient place for making cross references, a time-saving means of avoiding unnecessary dictation to the court and laborious and pointless note-taking by the court.

Skeleton arguments are aids to oral advocacy. They are not written briefs which are used in some jurisdictions as substitutes for oral advocacy. ...

The skeletal nature of written advocacy is in danger of being overlooked. In some cases we are weighed down by the skeleton arguments and when we dare to complain about the time they take up, we are sometimes told that we can read them "in our own time" after the hearing. In our judgment, this is not what appellate advocacy is about, or ought to be about, in this court."

Very similar remarks were made in Aziz v Davenport Lyons.

In these particular cases it’s easy to have sympathy with the judges. Without having seen the skeletons they refer to it’s impossible to say whether they’re as excessive as they sound. But around a hundred pages is an awful lot; too much in all but a gargantuan appeal. You can see why judges wading through all of that to no good purpose would become annoyed.

And, of course, brevity and concision is desirable. Strunk and White’s advice ‘Omit needless words’ remains good.

But, by calling for truly skeletal written submissions, I think the Court of Appeal is being unrealistic about how written advocacy now works.

At the point that the first advocate stands up in the Court of Appeal or the Employment Appeal Tribunal the panel has read the papers. In my experience they are meticulously prepared. Anyone with a less than complete grip of their case is likely to find themselves tangling with a judge who knows it better than they do.

This means, inevitably, that the judges have done a lot of thinking before the oral advocacy starts. The only chance the parties have to influence that thinking is in writing.

That means that, in practice, it’s a brave advocate who doesn’t set out their argument fully in their skeleton argument. It’s an arms race. If one advocate puts in a few pages that just outlines what they’ll say later, they risk their opponent putting in a full argument that has mostly convinced the judges before the hearing starts.

That would be possible to stop this, for example by enforcing draconian limits on the length of written submissions. But I don’t think it would be a good idea.

It’s a good thing that appellate courts don’t start cold on the day. I think key parts of appeal advocacy, explaining what the appeal is about and what your argument is, is better done in writing than orally. A judge who has read detailed written argument, is in a better position to engage orally than one who hasn’t. They can use the hearing to ask questions, critically engage with the advocates and clarify areas of difficulty or misunderstanding. Similarly oral argument is easier and better if both advocates have a clear idea of the other’s arguments.

I wouldn’t want to move to the US system, where appellate argument is almost entirely written (the US Supreme Court generally allows each advocate only half an hour to ‘emphasize and clarify’ the written brief).

But the days when UK appellate advocacy was solely or even primarily an business of oral advocacy are gone. And that’s a good thing.

This also means, I think, that advocates and those responsible for their training need to focus more on written advocacy skills (including omitting the needless words). They may be less glamorous: does any prospective barrister dream of writing a really clear and concise skeleton argument in an important appeal case? But they are no less important.

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