The skeleton argument

Your skeleton argument

This week, you will learn the basics of your written advocacy: writing and using a skeleton
argument.

It is important that you understand from the start the difference between the written advocacy in
your skeleton argument and your oral advocacy. You can do this by thinking of their
different functions and their different styles.

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Functions of your skeleton argument
The function of your skeleton argument is to clearly set out to the judge what your argument is. The
judge reads your skeleton argument before the hearing. Sometimes this is immediately prior to the
hearing, sometimes it is days before.

Your aim is for the judge to understand what your argument is. So, your skeleton argument should
focus on clarity. This does not mean that it should not persuade. However, it will do so by putting
forward strong points concisely and avoiding rhetorical flourishes.

The clue’s in the name ‘skeleton’. Your skeleton argument should be lean and concise. Remember
the famous saying, attributed to various thinkers and orators from Cicero onwards: 'I didn’t have
time to write a short letter, so I wrote you a long one instead.' Conciseness takes work and time.

On this module, given the relatively straightforward applications you will be making, you should aim
to produce a skeleton of four to six pages. Less, and you have probably not included enough
points. More, and you have probably not been concise. In practice, skeleton arguments for complex
cases may be longer, but they should always be as concise as they can be.

Writing a good skeleton argument is an essential skill. It is now common practice for advocates to
draft skeleton arguments for use at interim applications. The strict timetables imposed by the CPR
have led to the ever more widespread use of written argument. Directions will often provide for the
advance preparation and exchange of skeleton arguments.

Writing your skeleton argument: Style and method

Your writing style
To write a good, persuasive skeleton argument, you have to develop a good writing style. Your
writing should be HIGH in content and LOW in verbiage. It should not read like a novel. You should
use words well but use them sparingly, to best effect.

Your skeleton argument should be a skeleton, not a fleshy document. This can be harder than
writing a long, rambling document. You should definitely not be cutting and pasting.

Don’t be pompous or use formal drafting style (for example, ‘as in the documents hereinafter
referred to’) but don’t be too colloquial either (for example, ‘the Defendant is gonna prove this at
trial’).

Your writing method

There are formal parts of your skeleton argument which remain the same in structure. But the
precise form for a skeleton argument will be very much a question of personal style, which you must
be left free to develop in your own practice and in light of the uniqueness of each case you
argue. However, you should develop a good method in producing your skeleton argument.

Take time to research, plan and structure your skeleton argument for the particular case. Then,
follow the broad sequence we will look at now.

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 Introduction

The heading in your skeleton argument is the first part the judge will read, so you should impress
with your precision:

1. Make sure that you accurately state the court.

2. Give the case number.

3. If the parties are natural persons, give their full names. If the parties are legal persons, get their
status right, for example, ‘trading as [firm/PLC]’.

4. If there is more than one claimant or defendant, list and number them.

5. Finally, clarify whether they are actual parties or intended parties.

It is likely that all this will be set out on the papers, but always check for yourself.

Next, the tramlines. As this is an interim application and there may be a number of skeleton
arguments on the court file, it will be helpful to put a description, for example ‘Claimant’s skeleton
argument on extension of service’. Keep it short.

The very first part of your skeleton argument is the formal introduction:

· This should be short – two or three lines – and it should not involve argument.

· Explain to the judge what you are calling on them to do.

· It should indicate what your application is and what Civil Procedure Rule it is under, for example,
‘This is an application by the claimant to extend time for service under CPR6.15, alternatively for
alternative service under CPR 7.6.’

Documents

The next section introduces the documents. In practice and in a short application, not all barristers
would include this or would have this as a separate pre-reading list – but thinking about what the
key documents are (in essence the essential pre-reading for the judge) is a useful discipline when
you are developing your advocacy skill, so include this section for skeletons written on this module.

In introducing the documents, you are helping the judge get to grips with the papers. Remember,
they will be reading your skeleton together with the bundle of papers (and your opponent’s
skeleton, though you will often not have seen that at the time of writing). The reason you have this
section is to ensure the judge reads the documents you want them to read before the hearing.

Remember that you assist them in reaching their decision. If it is helpful to go to the notice of
application, list it. If there is a draft order in the bundle, refer to that. If you want the judge to read
your client’s witness statement, list it. But do not automatically list everything, because that wastes
judicial time. Remember to include page numbers, using the format Bundle/ 2-4 or (2-4).

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 Background

The next part of your skeleton argument to write is the background. This is the point at which many
students write pages of all the facts. However, that is wrong and not effective. Here you should be
setting out only the facts that are key to this application:

• Identify the facts.

• Be neutral.

This is a snapshot to contextualise the application, not a recitation of the entire case history. You
should focus only on facts that are relevant to this particular application. This is also an opportunity
to engage and interest the judge in your client’s story.

1. You should have started by writing a working chronology. This is useful to structure your own
understanding and to make sure you don't miss a key fact. You can then amend this working
chronology into one for the court's eyes. In practice, chronologies are often agreed between parties.
You can append the chronology to your skeleton. A chronology should be neutral ie if a fact is
disputed, that should be indicated.

2. Next, you should have thought about the key facts you need to include.

3. Now, in not more than half a page, summarise those facts.

4. Remember that in oral advocacy, you can refer to the chronology and to any documents that
might help the judge understand your client’s account, for example, Plan [X], Diagram [X]. Talking a
judge through a plan or diagram is effective advocacy.

Preliminary/procedural points

Next comes a section on preliminary or procedural points. Sometimes students get bogged down in
long sections on procedure. This should not happen. Procedure is only relevant if there is an issue
between the parties about whether it has been complied with or if there is something you must
address the court on and explain to the court, which it has to decide on.

We will look at this throughout the course. But do not confuse it with the substantive Legal Test.

The Legal Test

The second stage is where you set out the Legal Test. Remember, this is not an academic essay – the
purpose of you setting out the Legal Test is to assist the judge with solving the dispute. Sometimes,
in practice, this is dispensed with, and the test is reflected in the structure and headings of the
skeleton but you will include this section during this course to help you in developing your written
advocacy.

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The approach you need to take when making a first instance submission differs significantly from the
approach you need to take when arguing a point of law.

To start your research on first instance submissions, use the White Book. In doing so, remember that
there are two parts to your research: the rule and caselaw under the rule.

1. Start by identifying and reading the relevant CPR rule or rules. Identify and highlight the part
or parts of the rule that arise in this case.

2. Then read the White Book commentary in Volume 1 and, if relevant, Volume 2. Do not rely
on a summary strapline of a case. Read the cases themselves. If you use the online White
Book, you can select the case links directly.

The White Book and other similar practitioner texts can be used for guidance but should not replace
the primary sources. The commentary in such sources is simply that – commentary – and as such is
not binding on the court. You should be cautious when citing commentary, and always read the
cases for yourself. This will give you a better understanding of the law as well as a feel for the sort of
factual problems that come up under that rule.

Keep in mind the following:

1. Have a hard or soft copy of any case you cite.

2. Consider highlighting particular parts of a judgment that you wish to rely on in order to aid
ease of reference to the case, particularly where the judgment is very long.

3. You also need to include paragraph numbers if these are included in the judgment you are
citing, which you do by citing the paragraph number in square brackets: ‘at [54]’.

Your advance preparation and research for your skeleton argument, therefore, should go beyond
the White Book.

This section should be a concise identification of the Legal Test the judge must apply, not an
academic law essay. Your identification of the law should be precise and up to date. Check any
White Book supplements for amendments or new cases.

Once you have done this, you should have identified a question or series of sub-questions the judge
will have to ask themselves to decide the application. For example, in deciding whether to extend
time for service, did the claimant take all reasonable steps to serve in the usual manner?

Submissions

The next section of your skeleton argument is where you make your submissions. There are at least
two ways you can do this:

1. List the questions or issues that arise and then deal with them one by one.

2. Use the questions or issues that arise as your headings and address each under the heading.

Neither method is wrong – it is a matter of preference. The second is more concise and avoids
repetition, but you will not be marked down for using the first.

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In a first instance interim application, this section is key. This differs from mooting or appellate
advocacy, where the focus is on the law. Here, you will most likely win or lose on the facts.

To structure this section, use the questions that make up the Legal Test.

For example, in CPR 7.6, one sub-question might be: ‘Has C taken all reasonable steps to comply
with CPR 7.5?’

In this section, you will use the evidence in the bundle to show why the answer is yes or no. To do
this, point the judge to the relevant evidence in the bundle. Consider using clear sub-paragraphs to
make your points. Setting out the evidence in this clear form will also make it easier to speak to your
skeleton argument. Referring to the evidence in long, rambling, narrative paragraphs will not help.

Conclusion

Finally, the conclusion. Here, set out again what you submit the court should do. If you aren't
willing to spell it out, it is unlikely the court will order it.

These steps should greatly assist you in writing your skeleton argument.

Using your skeleton argument

So you have now researched, written and lodged your skeleton argument.

How should you use it when it comes to your oral advocacy?

The function of your oral advocacy is to persuade the judge to agree with the argument set out in
your skeleton. You will do this in a number of ways:

• Engaging with the judge. How you do this will vary, but good eye contact and positive body
language will help.

• Listening to the judge and dealing with their concerns about specific points in your
argument.

• Addressing points against you.

Reading your skeleton argument out does not further the function of oral advocacy and simply
wastes an opportunity. It risks irritating the judge because they will already have read it.

So how does my skeleton argument help at this stage? If the judge has already read my skeleton
argument, why do I have to go through it at all?

Your skeleton argument provides the judge with a road map for your oral advocacy. It provides you
with a structured framework on which you can hang your oral submissions to the court. It forms,
figuratively speaking, the bones upon which you later lay out the flesh of your argument. It follows
that all of the main arguments which you will seek to make at the hearing will be in your skeleton
argument.

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This is also where you will realise the benefit of a well structured, concisely written, lean skeleton. A
lean skeleton will also be easier to use when you come to your oral advocacy. On the other hand, a
rambling document which has been cut and pasted and where it is not easy to identify the argument
you are putting forward will hinder, not help, your advocacy.

The judge may have formed a view based on your skeleton argument but, unless it is wholly
favourable to you, they will give you a chance to persuade them in oral advocacy. If the judge has
reached a view wholly favourable to you which will not change, they will tell you that they need not
trouble you on that point. But most of the time, you will be expected to build on your skeleton
argument with oral advocacy.

Sometimes they will have reached a preliminary view after reading skeleton arguments, sometimes
they will not have. Sometimes they will have questions, sometimes they won’t.

Almost as bad as simply reading your skeleton is to depart from it altogether. Your skeleton
argument provides the framework, the map, for your oral advocacy. Your arguments remain those
set out in your skeleton argument. But you should treat it as a map upon which your judge may wish
to question and explore. This will vary from court to court and judge to judge. Some judges remain
silent throughout your submissions, not because they have not read your written advocacy but
because they have not reached a view and wish to hear how you will persuade them in oral
advocacy. Others ask you questions almost as soon as you stand up. We will look at addressing
judicial interventions later in this course. The important point for now is that you realise that your
written advocacy and your oral advocacy should work together.

What does this mean in concrete terms? It means that you will start your advocacy with the same
stages of introduction, checking that the court has the bundle, and introduction of the facts. From
time to time, you should signpost to your skeleton – e.g. ‘I am now at #13 of my skeleton
argument'. This helps the judge. Start by going through the stages of your skeleton argument but
ensure you bring it to life. You may do this by taking the court to plans or diagrams or parts of the
witness statement. But the stages should stay the same for written and oral advocacy.

So how should you prepare for this use of your skeleton argument? On this module, we recommend
that you mark up your own copy of the skeleton argument with places where you want to take the
judge to the White Book, or a page in the bundle or where you want to develop a point.

In practice, many advocates write separate speaking notes (see below), but you should start with the
method of annotating your skeleton argument because we want to make sure that you DO NOT
READ A SCRIPT.

Other documents which are not skeleton arguments

You may also hear about Written Submissions. Written Submissions are closing submissions in
written form. They are very different in style, being much more narrative than skeleton arguments.
They are intended to work on their own, without any oral advocacy. This is why they are fuller.

You will also observe that, in complex or appellate cases, barristers use a speaking note. This is quite
separate from the skeleton argument, which they will already have filed. A barrister may make

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notes of what they will say, how they will respond to their opponent's skeleton argument and any
questions from the judge. They may make a note of effective phrases they will use, which will later
sound spontaneous. They will not read their speaking note but use it as a guide. It will not be in a
written style, but in a speaking style, because it is never handed in to the judge.

You should be aware of these two other documents created by barristers, but do not confuse them
with skeleton arguments. In this module, we will focus on skeleton arguments.

Here is what some of your teaching team have to say about skeleton
arguments compared to oral advocacy
• 'A skeleton argument should present the judge with a clear structure of the test to be
applied, the facts in issue and the supporting evidence to make it easy for them to write
their judgement and rule in your favour.' Clare Brown

• 'Your skeleton is a written document of your legal arguments. The oral advocacy brings
those arguments to life.' Sarwan Singh

• 'Arguments are most persuasive when they sound obvious and effortlessly made. Reading
creates the very opposite impression, and it is very easy to tell when an advocate is doing it.
Even if a skeleton has been memorised word for word, it will sound too stiff to be
persuasive. Second, by reading out your argument, you give the impression that you have
too little confidence in your case to deliver it in a direct, natural way. Delivering it indirectly
means that there is a barrier between you and your tribunal which hinders communication
and depletes your persuasive impact.' Nigel Waddington

• 'The skeleton is for the judge to see the big picture of your case (in advance). It gives
you your structure for your oral submission. But it should never be the whole thing. If you
want to read your skeleton, you will put too much in it. It is not a written submission.
Reading out loud is not advocacy. You are not engaging with and re-acting to the tribunal. A
persuasive submission is more like a conversation with the judge – you can't have that by
just reading to him/her.' Ronnie Lachkovic

Judicial guidance
Time and again, judges have complained about lack of conciseness in skeleton arguments. If you
have already irritated them by lodging a skeleton argument which lacks clarity, conciseness and
cogency, your task in oral advocacy will be uphill.

From APA Civil Procedure, 22nd ed para 23.40:

'Skeleton arguments are intended to assist the court in dealing with its business in a timely and
efficient manner (Tchenguiz v Director of the Serious Fraud Office [2015] 1 WLR 838). A skeleton
argument should provide a concise summary of the party’s submissions on the issues raised by the
application, and should be as brief as the nature of the case allows. It should both define and confine
the areas of controversy, and should avoid extensive quotations. There are different maximum page
lengths in different courts, but even in the Court of Appeal there is a ceiling of 25 pages (PD 52C,

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para 31). A skeleton argument needs to be persuasive, but is not a substitute for oral argument. It
should cite the main authorities relied upon, be divided into numbered paragraphs, be paginated,
make use of abbreviations (such as ‘C’ for claimant, ‘A/345’ for page 345 of bundle A) and give dates
in the form ‘23.4.2018’. In more substantial applications it should have a reading list for the judge of
the core documents.'

From Blackstone's Civil Practice 2020, para 74.29:

'For appeals to the Court of Appeal, skeleton arguments must not normally exceed 25 pages and
must be printed on A4 paper in not less than 12 point font and 1.5 line spacing (PD 52C, para. 31(1)).
Each skeleton argument should be labelled as appropriate (for example, appellant’s PTA skeleton;
appellant’s replacement skeleton; respondent’s supplementary skeleton) and dated on its front
sheet. In the past it has been said that for a one-day appeal on a point of law, 10 pages should be
enough. Length obscures the points that are germane to the resolution of an appeal (Tchenguiz v
Director of the Serious Fraud Office [2014] EWCA Civ 1333, [2015] 1 WLR 838). Skeleton arguments
should not be prepared as verbatim scripts or as footnoted theses. They are aids to oral advocacy,
not substitutes. A skeleton argument in D. Pride and Partners v Institute for Animal Health [2009]
EWHC 1617 (QB), [2009] 5 Costs LR 803, was criticised for resembling the style of a textbook.'

Guidance from Raja v Van Hoogstraten (No. 9) [2008] EWCA Civ 1444, [2009] 1 WLR 1143 at [126]–
[128] is important:

'126. 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.

127. Skeleton arguments are aids to oral advocacy. They are not written briefs which are used in
some jurisdictions as substitutes for oral advocacy. An unintended and unfortunate side effect of the
growth in written advocacy (written opening and closing submissions and ‘speaking notes’, as well as
skeleton arguments) has been that too many practitioners, at increased cost to their clients and
diminishing assistance to the court, burden their opponents and the court with written briefs. They
are anything but brief. The result is that there is no real saving of legal costs, or of precious hearing,
reading and writing time . . . .

128. 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.'

Appellate Advocacy
Note that specific guidance for Appeal skeleton arguments can be found in PD 52A, para 5.

5.1

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(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.

(3) Documents to be relied on must be identified.

(4) Where it is necessary to refer to an authority, a skeleton argument must –

• (a) state the proposition of law the authority demonstrates; and

• (b) identify the parts of the authority that support the proposition.

If more than one authority is cited in support of a given proposition, the skeleton argument must
briefly state why.

(5) The cost of preparing a skeleton argument which –

• (a) does not comply with the requirements set out in this paragraph; or

• (b) was not filed within the time limits provided by this Practice Direction (or any further
time granted by the court),

will not be allowed on assessment except as directed by the court.

5.2

The appellant should consider what other information the appeal court will need. This may include a
list of persons who feature in the case or glossaries of technical terms. A chronology of relevant
events will be necessary in most appeals.

5.3

Any statement of costs must show the amount claimed for the skeleton argument separately.

Further guidance for skeleton arguments in relation to cases in the Court of Appeal is set out at
52CPD.31.

Number of authorities used in a skeleton argument

There are some important requirements set out in Practice Note [2001] 2 All ER 510:

Methods of citation

8.1. Advocates will in future be required to state, in respect of each authority that they wish to cite,
the proposition of law that the authority demonstrates, and the parts of the judgment that support

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that proposition. If it is sought to cite more than one authority in support of a given proposition,
advocates must state the reason for taking that course.

8.2. The demonstration referred to in para 8.1 will be required to be contained in any skeleton
argument and in any appellant’s or respondent’s notice in respect of each authority referred to in
that skeleton or notice.

8.3. Any bundle or list of authorities prepared for the use of any court must in future bear a
certification by the advocate responsible for arguing the case that the requirements of this
paragraph have been complied with in respect of each authority included.

8.4. The statements referred to in para 8.1 should not materially add to the length of submissions or
of skeleton arguments, but should be sufficient to demonstrate, in the context of the advocate’s
argument, the relevance of the authority or authorities to that argument and that the citation is
necessary for a proper presentation of that argument.

Attachments to your skeleton

1. Provide a chronology and/or a list of relevant persons if you think it will be of assistance. This
should be separate from/appended to your skeleton argument.

2. Attach any case law authorities which you have cited. For the BVS this can be just the headnote
and the relevant page(s) from the judgment(s). You should highlight any parts of the judgment
which you wish to refer the judge to.

And finally, check the formalities…

• Clear header (including whose skeleton).

• Clear English, correct spelling and punctuation.

• Point 12 Arial font (or equivalent); 1.5 line spacing.

• Concise (ideally four to six sides).

• Paginated.

• Paragraph numbers (not bullet points).

• Helpful sub-headings (are they clear? Does the sub-heading clearly relate to the content below it?).

• It may assist to cite CPR or evidence in bold/italic.

• Intelligible and consistent abbreviations (not first names).

• Name, chambers and date at the end.

• No footnotes.

• Print single-sided for ease of use and annotation.

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Skeleton arguments in class
This session, you will work in groups on the structure of a skeleton argument.

In future group sessions, you will either email your skeleton argument to your Tutor or upload it to
Teams, as directed.

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