Tchenguiz v Director of the Serious Fraud Office & Anor

Skeleton arguments are case-management tools. They must be concise, identify and confine the issues, and avoid unnecessary quotation or repetition. A party should include foreseeable points in the original skeleton rather than introduce them shortly before the hearing in a lengthy supplementary document. The court may permit reliance on only those supplementary passages that materially assist. These requirements apply equally to commercial and Chancery litigation. Serious non-compliance may also justify directing that the party cannot recover the costs of its skeleton arguments, regardless of the appeal’s outcome.

The claimant appealed from an order made by Mr Justice Eder in the exercise of his discretion under rule 31.22 of the Civil Procedure Rules. The appeal gave rise to an application under paragraph 32 of Practice Direction 52C to rely on a supplementary skeleton argument. The original skeleton was 47 pages long. The proposed supplementary skeleton was 34 pages, with a 15-page appendix, and was served one week before the hearing. The central issue was whether any part of that additional material should be admitted and what costs consequences should follow from the non-compliance.

The application was granted in part. The court permitted reliance on paragraphs 28 to 49 of the supplementary skeleton argument, but excluded the remainder. The appellant was not permitted to recover the costs of either skeleton argument.

1. Under paragraph 5 of Practice Direction 52A, a skeleton argument must assist the court by setting out the arguments as concisely as practicable. It should define and confine the areas of controversy and should not contain extensive quotations from documents or authorities. Paragraph 31 of Practice Direction 52C ordinarily limits a skeleton argument to 25 pages. These requirements serve the efficient and timely conduct of the Court of Appeal’s business.

2. The proposed supplementary material largely overlapped with the original skeleton and dealt with points that were foreseeable from the outset. Such points should have been included initially. If the original skeleton was defective, the appropriate course would have been to prepare a single compliant substitute skeleton promptly after permission to appeal was granted.

3. The rules apply to every class of litigation. Commercial and Chancery cases are not exempt. Excessive length can obscure the points germane to the resolution of the appeal.

4. The material in paragraphs 28 to 49 was sufficiently useful to retain, particularly in identifying the appellant’s arguments concerning the relevance of the documents in issue. That limited utility did not excuse the failure to present the points concisely in the original skeleton.

5. The costs direction was justified by the gross non-compliance, independently of the eventual outcome of the substantive appeal.

• Court of Appeal (Civil Division): granted permission to rely only on paragraphs 28 to 49 of the supplementary skeleton argument and directed that the appellant could not recover the costs of either skeleton argument.
• High Court of Justice, Queen’s Bench Division, Commercial Court: Mr Justice Eder had made the order under rule 31.22 of the Civil Procedure Rules, from which the appeal arose.