Skeletons, Position Statements & Notes

“…it can take years to live down the mistake of addressing a district judge as mum instead of ma‘am”

There comes a point in life when you turn on the radio and think ‘this isn’t music; it’s just noise’. Or somebody says less pages instead of fewer and you inaudibly tut.

The law provides endless opportunities for this creeping pedantry, as you gradually turn into your own parent. My personal favourite is pointing out that there’s no such thing as a First Directions Appointment (FDA). And there isn’t. Look at the FPR 9.15: it’s called a “First Appointment”. There are no references in the rules to First Directions Appointments or FDAs. Eternal shame on Resolution for publishing a ”Guide to the First Directions Appointment”.

Does this matter? Well, there aren’t many cases which turn on whether you’ve mistakenly put the word ‘directions’ into a chronology. But then again, if we’re being honest with ourselves, every lawyer gets a small sense of satisfaction from being right, or from using the correct term. There are few careers more focused on deploying le mot juste. Where it can take years to live down the mistake of addressing a district judge as mum instead of ma‘am, where entire TOLATA claims go awry for confusing promissory estoppel with proprietary estoppel.

For this post, the pedantry du jour is what rules apply to written submissions and what should they be called? In financial remedy hearings these are described variously as Position Statement, Case Summary, Note, Skeleton Argument or Written Case. Invariably they all are all substantively the same: a gumbo of narrative background, legal citation, analysis of the issues (occasionally) with a soupçon of having a really good moan about the other side.

So what actually is the difference between a position statement and a case summary? This involves a detailed consideration of FPR Practice Direction 27A, (which I shall refer to, inaccurately, as the Bundles Direction.)

“Case Summary”

PD27A requires the court bundle to contain preliminary documents, including “…an up to date case summary of the background to the hearing confined to those matters which are relevant to the hearing and the management of the case and limited, if possible, to four A4 pages” (§ 4.3(a)), but no longer (“unless the court has specifically directed”) than six pages (§ 5.2A.1).

An interesting comparison can be found at CPR PD 29A § 5.7 which provides that in civil proceedings, at a multi-track CMC, the case summary should not exceed 500 words.

Why, one wonders, do family litigants get up to six pages (roughly 2,250 words if 1 1/2 spaced) where civil litigants have to do it in about a quarter of the space? Are family cases inherently more complicated than civil claims? Or do family lawyers have less time to make their documents shorter? Maybe this is just another example of things happening differently and more loosely in family cases (see e.g. rules of evidence).?

So, a ‘case summary’ should explain the background to a case relevant to the specific hearing in no more than 4-6 pages.

“Position Statement”

Distinct from a case summary is a position statement which should include “a summary of the order or directions sought by that party (1) at that hearing and (2) at the final hearing” (§ 4.3(c)). Again, unless the court has directed otherwise, this should be a maximum of three pages long (§ 5.2A.1).

However, the recent ‘FPR Good Practice Protocol’ (November 2019), which provides that in most cases questionnaires should be no longer than four pages (GPP § 13), states that (without derogating from the Bundles Direction) it is ‘good practice’ that a position statement including schedules should not cover more than 5 pages for a First Appointment, 10 pages for an FDR and 15 pages for a final hearing. Plainly this does not contemplate a 10 page position statement in addition to a case summary etc – it would appear that the framers of the GPP have a different interpretation of a ‘position statement’ than appears in the Bundles Direction;

“Skeleton Argument”

Unlike a case summary and a position statement, the rules do not require a skeleton argument. It should only be filed “if appropriate” (§ 4.3). A skeleton should be no longer than twenty pages (§5.2A(1)). However if the case is proceeding before a High Court judge, in which pursuant to Mostyn J’s ‘Statement on the Efficient Conduct...”, in which case there are specific provisions of para. 15 of that guidance which should be followed including that the page count should not exceed (respectively) 10, 15 and 20 pages for a First Appointment, FDR and final hearing without extensive quotation from the authorities;

By contrast, in civil procedure, the presumption of whether to file a skeleton argument is the other way around: skeleton arguments should be filed where the case is before a judge unless the hearing does not warrant one (see, e.g. Chancery Guide § 21.73), and will “almost invariably be essential” at a case management directions hearing (Chancery Guide § 17.20). Interestingly, this applies a broader interpretation to what constitutes a skeleton, i.e. “…a list of the persons involved in the facts of the case, a chronology and a list of issues will also be required… to be agreed where possible” (Chancery Guide § 21.75)

Skeletons for appeals in the family court (up to High Court level) are covered in FPR PD30A para 5.13 to 5.22 which contain the guidance that:

5.18 A skeleton argument must state, in respect of each authority cited –

(a) the proposition of law that the authority demonstrates; and

(b) the parts of the authority (identified by page or paragraph references) that support the proposition.

5.19 If more than one authority is cited in support of a given proposition, the skeleton argument must briefly state the reason for taking that course.5.20 The statement referred to in paragraph 5.19 should not materially add to the length of the skeleton argument but should be sufficient to demonstrate, in the context of the argument –

(a) the relevance of the authority or authorities to that argument; and

(b) that the citation is necessary for a proper presentation of that argument.

The contents of a skeleton appeal prepared for an appeal to the Court of Appeal must comply with CPR PD 52A, Section V, and in particular the following:

(1) The purpose of a skeleton argument is to assist the court by setting out as concisely as practicable the arguments upon which a party intends to rely.

(2) A skeleton argument must–

– be concise;

– both define and confine the areas of controversy;

– be set out in numbered paragraphs;

– be cross-referenced to any relevant document in the bundle;

– be self-contained and not incorporate by reference material from previous skeleton arguments;

– not include extensive quotations from documents or authorities.

Schedule of assets

Curiously, the Bundles Direction contains no requirement to file the single most important document in any financial remedies case: a schedule of assets, or the second most important; a net effect calculation. There is a (generally overlooked) suggestion at FPR PD9A § 4.1 that the parties should “if possible” lodge an agreed schedule of assets, agreed summary and draft directions, before a First Appointment. But there is no equivalent provision before an FDR or final hearing. The Good Practice Protocol invites opposing advocates ‘wherever possible’ to work together to produce a “single (if possible agreed) assets schedule” (§ 14).

In practice it is extremely risky to attend an FDR or final hearing without a schedule (although this does still happen, even with seasoned representatives). There is similarly no guidance in the rules as to the format of a schedule: this has led to two broad schools of thought: the ‘Third Columnists‘ (Jt, H, W) vs ‘Second Columnists‘ (W, H, joint assets divided equally). For what it’s worth, I am a committed Third Columnist.

But, does anyone actually follow the Bundles Direction?

Strict compliance with the Bundles Direction § 4.3 would involve seven separate documents appearing at the front of the bundle for every hearing: (1) a case summary, (2) statement of issues, (3) position statement, (4) chronology, (5) skeleton (optional), (6) list of reading, (7) time estimate, which should comply with the strictures of § 10.1, ie

“(a) specify separately: (i) the time estimated to be required for judicial pre-reading; and (ii) the time required for hearing all evidence and submissions; and (iii) the time estimated to be required for preparing and delivering judgment”

This excludes the further three documents which the parties are encouraged to file before First Appointment (FPR PD9A §4.1) – making in theory a running total of ten.

However, §4.6 provides that “a final hearing, and shall so far as practicable in the case of any other hearing”, the first four documents may be consolidated into a single document – although this should be agreed, with any disagreements identified.

All of the above should be as “short and succinct as possible” (§4.4), cross referenced against the paginated bundle (§4.4) and where possible agreed in a single document with disagreements marked (§4.5)

In reality

In this age of micromanagement, where the Bundles Direction descends to the detail of prescribed font size and line spacing (§5.2), it’s noteworthy that no one actually follows the provisions of the Bundles Direction to the letter in money cases. It may be that in other areas (public law children for example) it makes more sense to have such a multiplicity of documents.

As noted above, what happens in financial remedies is that each party’s advocate lodges a single (and not agreed) document, comprising a mixture of factual background, sardonic asides, law and sometimes analysis (see earlier post, “The Ten Commandments of Financial Remedy Notes”).

And the Bundles Direction doesn’t really cater for this, in terms of how long such a composite document should be, or even what it should be called. The Good Practice Protocol comes closer to recognising reality in its provisions relating to Position Statements (see above).

So I will offer my own, unauthortative thoughts:

1. When filing a composite document it is probably better to avoid terms such as Case Summary or Skeleton, which have defined meanings in the Bundles Direction;

2. The term “Note” is probably fine (if a little undersold), as is “Position Statement” (even though that has its own precise meaning in the Bundles Direction, cf. Good Practice Protocol). For those with grander aspirations, the term “Written Case” (which is used when filing documents at the Supreme Court) also works

3. The page limits in the amendments to the Bundles Direction are if anything conterproductive: § 5.2A.1 allows a total of 42 pages for the preliminary documents (excluding the time limit/ trial timetable). That is like setting the speed limit at 180 mph on the motorway.

4. In terms of length, and I cannot emphasise this too strongly, shorter is better. Judges do not have the time to read through a 30 page magnum opus in a busy list. The almost universal experience which comes from sitting as a judge or arbitrator is err on the side of brevity – see the FLJ Guide to the FDR § 19

5. Always lodge a schedule of assets and (at FDR or final hearing) a net effect schedule.

6. When you have the time, lodge draft directions / a draft order.

7. Finally, with the current Covid crisis in mind, do not overlook the following provisions contained in the Good Practice Protocol: where documents are lodged by email the time limit is 2pm the day before (GPP § 14, cf. 11am in the Bundles Direction), and the Financial Remedies Court (even pre-covid) encouraged submission by email so that the hearing can be paperless.

Alexander Chandler

2 July 2020

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