The old adage of "I didn't have time to write a short letter…" is not an excuse for lawyers making their clients' arguments. The Court of Appeal inTchenguiz v SFO was not impressed by Counsel choosing to lodge almost 100 pages of 'summarised' argument contrary to the rules, the principles of good written persuasion and the advantages of brevity.
The Appellants filed a 47 page skeleton argument and a 34 page supplementary skeleton that was accompanied by a 15 page appendix. Lord Justice Jackson, Lady Justice Sharp and Lord Justice Vos treated the 96 page skeleton argument as "substantial non-compliance" with the rules and responded by taking a razor to the supplementary skeleton.
The rules governing the format of skeleton arguments in the Court of Appeal are clear; skeleton arguments should be concise, define and confine the areas of controversy and assist the court in settling out the arguments upon which a party intends to rely. They should also "not normally exceed 25 pages". As Jackson LJ pointed out these rules exist to "enable the Court of Appeal to deal with its business in a timely and efficient manner" and as Sharp LJ added "the rules apply to all classes of litigation and there is no exception for commercial litigation".
The 'formal' risk of non-compliance with the rules is that the court may disallow the cost of preparing the Skeleton Argument or, as in this case, that the court may not allow a particular argument to be heard. More subtly (and as astutely pointed out by Sharp LJ) a long and winding argument is increasingly unlikely to be persuasive. If a party has a good case - it should be relatively easy to explain the essence of that case quickly. Repetition and multiple arguments may well suggest that the party is trying to bolster a weak position.
So what does the Appellant do who, under pressure to file an Appellant Notice, filed a Skeleton Argument that they would like to amend for the appeal hearing? Jackson LJ sets out in his judgment the sensible approach i.e. file and serve a substitute skeleton argument that complies with the rules. Keep it short and clear and persuasive.