How to write a Skeleton Argument for Court

What do you need a Skeleton Argument for?

Skeleton Arguments are documents filed with the Court and exchanged between the parties in advance of a court hearing.

They summarise what you will say to the judge at the hearing. It’s a broad outline.

It is not meant to contain everything that you might say to the judge. If you make it too long, the judge might not read it at all.

But there's more to it. Much more.

Types of Hearings

The hearing could be:

1. Case Management Conference
2. Interim Application, such as an application for default judgment, summary judgment, freezing order, pre-trial review, or any other hearing
3. Pre-Trial Review, or
4. the Trial.

Skeletons are usually filed with the court the day before the hearing.

Some courts require them to be filed two days before the hearing, or even more. They are mostly filed by email to email addresses designated by the particular court.

 

Exchange of Skeleton Arguments

Also, they should be exchanged with the other parties due to appear at the hearing, the day before. You should write to the other side the day before (or earlier) and ask them when they will be ready to exchange skeleton arguments, once you have completed yours and you are ready to exchange them. You usually agree a time that they will be sent, and then send them at that time.

If the other party does not prepare a skeleton argument, it's a good idea to hand them a copy of yours outside court.

If they then tell the judge they only just received it outside court, remind the judge that they either:

• didn't send theirs, or
• didn't prepare one at all.

 

What should be included in Skeleton Arguments?

It’s important to focus on the relevant facts, issues and arguments that are relevant for the specific hearing.

There's a checklist below.

But first…

Here's a bit of context of the environment within your skeleton argument will probably be read.

Courts are busy places. As are judges.

It makes sense to make the judge's job as simple as it can be.

Even for short hearings (20 minutes), a skeleton argument will assist the judge prepare for the hearing. That should be seen as a good thing.

Or you could look at it another way. If you don’t file a skeleton argument, you’ll probably aggravate the judge. You’re making their job harder.

And, if you don't send the Skeleton in advance of the hearing (at least 24 hours), the judge may not have time to read it.

There is no point handing a judge a skeleton argument in court. It’s too late.

You’re able to see below what a Court of Appeal judge said when he got miffed by the skeleton arguments filed for a hearing.

 

Why bother to prepare a Skeleton?

The investment of time you make in a skeleton argument saves everyone time.

If it covers what it should, it allows the judge to be better prepared for your hearing.

You save the court's time and facilitate the decision-making process by the Court. It does so by giving the judge in a condensed form:

1. the relevant background to the case which justifies the court making the Order sought
2. a summary of the reasons why the court should find in your favour, and
3. preferably, why the court should not accept the position of your opponent.

 

How to write a Skeleton Argument

A properly drafted skeleton argument for a hearing contains a number of items. They include:

1. Introduction: state what the hearing is about, such as:
   For the hearing of an Application: "This is the first hearing of an application made under an Application Notice dated [date] of the [Claimant / Defendant], [name], for [summary judgment  / default judgment / setting aside default judgment / strike out a statement of case,  for an order that the defendant give specific disclosure / an extension of time]"

For a case management conference: "This skeleton argument is for the [first | second] case management conference] in these proceedings"

For a pre trial review: "This skeleton argument is for the Pre-Trial Review in these proceedings".

An Appeal: “This is an appeal of a decision of the decision of Mr/Mrs Justice [name] made by the Claimant, [Claimant’s Name], which ordered that […]. The Claimant asks the Court to [uphold/set aside] the order.”

Trial: "This is the skeleton argument of the Claimant for the trial in these proceedings."

2. Time Estimate: a genuine (ie be sure not to underestimate it) estimate of the time to:
   1. prepare the hearing, known as “reading time”, and
   2. the time estimated to be required for the hearing

When you have completed drafting the skeleton argument, ask yourself: how long would it take you to read  the skeleton argument and the parts of the documents that you refer to in it?

3. Application Bundle: state whether an application bundle (aka a "hearing bundle") has been filed, so that the judge knows it exists if s/he does not have it.
   The application bundle should have an index and page numbers on each page so that the judge can find the documents referred to in the reading list. Those page numbers are used in the Skeleton Argument to refer the reader to pages in the bundle
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 at the hearing
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 that chronology. Keep it brief
7. Causes of Action: State the cause(s) of action if you're the claimant
8. The law, which may be:
   1. the jurisdiction of the Court which the court is being asked to exercise. This will be important when you make interim applications. Provide a reference to the basis of the jurisdiction of the Court which the Application seeks to invoke. This will often includes references to paragraph numbers in the Civil Procedure Rules. The jurisdiction entitles the judge to make the order sought in the draft order.
   2. the key text of the relevant law, such as citing case law and relevant statutes.

7. Submissions: a summary of the arguments which the applicant relies upon to justify the making of the order sought in the draft Order.
   In hearings of applications, explain why the order should be made in your favour.
   The law should be applied to the facts of the case, paragraph by paragraph and point by point.
8. Response: respond to the likely position of the opponent
9. Conclusion: re-states what you want the Court to do. It should be consistent with the Introduction

Side note: Submissions vs Evidence

Submissions (aka arguments) are for skeleton arguments.

You can and should refer to evidence in your skeleton argument, but don't expect a judge to rely on (ie believe) evidence in a skeleton argument.

Evidence is for witness statements: they're endorsed with a statement of truth. Remember, if you need to prove a fact as part of (a) an application or (b) at the trial (which must be in a statement of case), the court will be sizing it up on the balance of probabilities on the evidence before the court.

It's fundamental stuff.

Attachments to Skeleton Arguments

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

1. A list of the names of the main characters in the litigation, their roles, and who they give evidence for; aka a "dramatis personae".
   These are really useful when there are many people and companies referred to in your skeleton argument. 
   You can also recycle it from hearing to hearing if it is needed
2. Extracts from relevant cases and/or statutes, if necessary, and only those which you will refer the judge to at the hearing
3. A case summary, factual chronology and/or procedural (ie the outcome of previous applications before the court) chronology, if they are not contained in the application bundle.
   Make sure you include the dates that relevant events took place. There is a sample chronology for use in the County Court in Central London below.

 

Skeleton Arguments for Trial

A skeleton argument for trial for a claim (say in the case for fraud) should at least include:

1. Introduction (see above)
2. A reading list
3. Any preliminary issues that should be discussed with the Court before the trial begins - sometimes called "house-keeping"
4. A brief statement of the relevant law. So if the claim was for fraud, you would briefly summarise:
   1. the law of fraud; and
   2. the elements that need to be proven to make out a case for fraud
5. Submissions (ie arguments in your favour that support your case), with references to other documents before the court, such as:
   1. case summary
   2. chronology
   3. statements of case
   4. evidence before the court, that is witness statements
   5. list of issues.
6. Submissions on remedies which should be awarded or denied, including those which are not available on the facts of the case
7. How to conclude a skeleton argument: Remind the judge in a condensed form the Order that you would like the court to make, and why the court should make the order you request.

Naming Conventions

When you refer to a party or person (such as "the Claimant", "Mr Smith", "the Respondent", "the Defendant"), stick to the reference. Don't switch to another reference and switch back to the previous reference later. 

Also, be consistent with the method of reference.

If you use "the Claimant" to refer to the claimant, use "the Defendant" to refer to the defendant. For persons other than the parties (ie the claimant and the defendant ) it's conventional to use "Ms Jones" or "Mr Jones". Use the same method of reference to all non-parties referred to throughout your skeleton argument.  Don't switch to "Sally Jones" or "Jones". 

Also, try to avoid referring to people by their last name alone. It's considered rude and disrespectful. There's no need for it. If you do do it, you give quite a bit away about yourself. 

The only place we've ever seen a Court refer to a litigant by their last name alone was by the House of Lords in Attorney General v Blake (2000).  He was a convicted traitor when he became an agent for the then Soviet Union. That's a high standard to reach to call someone by their last name alone.

 

How long should a skeleton argument be?

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 a complex application, it is probably too long
3. a replacement for oral argument and submissions.
   This can’t be overstated.
   Skeleton Arguments are to assist courts prepare for hearings, and an aide memoire during hearings.
   Courts rely on advocacy - ie argument in court - to make decisions, not skeleton arguments

 

Reasons for Preparing

Drafting one will also force you to think through your case, and how you are going to say things in court.

Which is a good thing.

You'll be less likely to have to make your arguments up as you go.

You would have had thought them through previously, when you prepared your skeleton argument.

Don't leave yourself in a position where your skeleton argument is:

1. handed to the judge in the hearing. They're intended to allow 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
2. unstructured, or a rambling document.
   Keep it focused

So you can get a sense of scope and what you should be focused on, check out paragraphs 10 to 19 here.

 

What the Court of Appeal says

In a unanimous decision of the Court of Appeal in Inplayer Limited v Thorogood [2014] EWCA Civ 1511, Lord Justice Jackson was pretty wound up.

The Judge criticised the poor quality and excessive length of skeleton arguments which had been filed with the Court of Appeal. He said this:

52. [...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.

That was a while ago. This was said in the more recent High Court case mentioned above:

• The skill in drafting a skeleton argument lies in the production of a concise outline of the essential elements of the argument which is to be developed orally in court.
• It is evident that the authors of the skeletons in the present case were proceeding on the assumption that they could demand of the court such judicial time as they thought necessary. In that they were mistaken. The length of the written argument means that the vast bulk of such pre-reading time as was allowed had to be devoted to reading them, rather than underlying documents. In fact, in this case, the length and complexity of the written argument served to obfuscate the real issues in the case. In truth, these were not skeleton arguments at all; the arguments contained in these documents were fully fleshed out and dressed in much unnecessary finery.

 

When should you file a Skeleton Argument?

Most courts require the skeleton arguments to be filed by 10.00am the day before the hearing. Each court should have a designated email address for skeleton arguments to be to sent to.

You should be able to find the contact details for the court at https://courttribunalfinder.service.gov.uk/search/. Look for an "e-filing" email address. Here's the page for the County Court in Central London, so you know the sort of thing you're looking for.

Format of Skeleton Arguments

You can check out the format of the skeleton argument in the example template below.  The general guidelines are:

1. Print on one side of the page
2. Use 1.5 line spacing or double spaced
3. Use a large typeface – Times New Roman 12 or Arial 12 are good starting points
4. Use wide margins to facilitate notes by the judge (at least 2.5 cm)
5. Formatting:
   1. Number the pages at the bottom of the page
   2. Use numbered paragraphs, and indent sub-paragraphs. There's a "modern trend" to not indent subparagraphs.  If you find it hard to read, others may do too. In this case, it's exactly the wrong person whose job you're making harder.
   3. Ideally, paragraphs should use numbers (1, 2, 3), subparagraphs use letters (a, b, c), and subsubparagraphs (i, ii, iii).

This is so that it is easy to refer to specific parts of the skeleton at the hearing, if you need to. And the judge can ask you about a specific part of it by referring to the paragraph number. You can go there quickly with a paragraph reference. Make the judge's job as easy as it can be for your type of case.

6. Use headings and subheadings with different emphasis to guide the structure
7. Rather than recite material which appears in the application bundle, cross references should be used to the tab number, page number and paragraph in the application bundle. See paragraphs 6 and 7 of the example skeleton argument below.

 

Skeleton Argument Templates

Summary Judgment

In this example, we put together the basic structure of a skeleton argument for hearing of an application for summary judgment. The format can be used as a starting point for other hearings.

The basic points are covered in the template.

We prepared the template for a hearing in the Intellectual Property Court in London. If you’re in the County Court, it is pretty straightforward to change. Just delete the 2^nd to 5^th line and replace that text with, “IN THE COUNTY COURT SITTING IN [LOCATION]”. The location you need will probably be at the top of a letter received from the County Court.

Download: Skeleton Argument for Summary Judgment: Example

After you've done your skeleton argument, it's time to get ready to represent yourself in court.

Skeleton arguments are not a one-size-fits-all documents. Strike Out Applications and Default Judgment Applications have their own criterion and considerations. 

Chronology Template

Sometimes you need to prepare a factual chronology to put in with your skeleton argument. Here's one for download: Chronology template.

 

Commercial Litigation Law Firm 

We're firm of business solicitors, assisting businesses with business litigation.

There are established procedures and customs in operation in UK courts which you won't find in the Civil Procedure Rules. Even then some litigants and law firms don't play by the rules, and cause problems that don't need to be there. If you can see how you're being set up for a fall, it helps to sterilise the attempt to do so, and keep things on track. 

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Our IP and technology disputes work lets us see first hand how other parties cases don't go to plan and can fall apart at different stages.

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