Stephen Baister Writes... The Long & the Short of It

There’s a book entitled Law and Time. I haven’t read it. I probably should, but the publisher’s pretentious description of the contents rather put me off. There is probably room on the shelves for a book called Length and the Law. The CPR have a great deal to say about the length of this and that; and length also features increasingly in judgments, often as a postscript. Let’s look at three areas where length has been, and continues to be, the subject of legal consideration.

The first is judgments. As we all know, these get longer and longer. In Neumans LLP v Andronikou [2013] EWCA Civ 916 Mummery LJ bemoaned the tendency to increasing length and complexity, suggesting a return to what he called “an old-style judgment,” which set out short legal propositions relevant to the case and the conclusions reached by applying them in this case. The aim would be “to stem the soaring costs of litigants when their advisers have to spend too long working out what the law is. They may be faced with a multiplicity of separate, complex, discursive and (increasingly, imitating the style of subordinate legislation) cross-referential judicial pronouncements at different levels of decision, or at the same level of decision, but sometimes leading to the same overall result.” In BS (Congo) v The Secretary of State for the Home Department [2017] EWCA Civ 53 the Court of Appeal handed down a “short form” judgment (just 26 paragraphs), but the idea does not seem to have taken off. (This may have something to do with the tendency of appellate courts to criticise the judge below for giving a judgment that was too short.)

Second, bundles. These are the subject of endless complaints, one being that they are too long. In Network Rail Infrastructure Ltd v The Secretary of State for the Environment, Food And Rural Affairs [2017] EWHC 2259 (Admin) Holgate J complained about their extent and how little of the material in them was actually used. Remember Sedley LJ’s Laws of Documents, number 8 of which provides that “At least 80 percent of the documents shall be irrelevant; [and] Counsel shall refer in court to no more than 10 percent of the documents, but these may include as many irrelevant ones as counsel or solicitor deems appropriate.”

Third, skeleton arguments. These also came in for criticism in Network Rail v Secretary of State alongside bundles. They were too long.

So what is to be done?

Pity the judge who tries to deal with a case in a pithy judgment. All too often his or her gallant attempt to follow what the Court of Appeal has advised will be met with criticism for not covering adequately all the ground traversed at first instance or for the reasoning being too brief. If solicitors include too much in the court bundles, they get flak; but woe betide them if a document the judge wants to see is missing – and when it comes to costs. Pity counsel who puts hours into a skeleton argument that is comprehensive, but which taxes the patience or stamina of the judge who has to read it. Flak again, and costs disallowed.

I have no solution to these tensions. I think we all simply have to live with the recognition that there are some things in relation to which, whatever we do, we risk being in the wrong, damned if we do x, and damned if we don’t.

Author: Stephen Baister - Consultant