Understanding Skeleton Arguments (Important)

8/12/2019 Understanding Skeleton Arguments (Important)

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SKELETON ARGUMENTS.

Definition

Generally, a skeleton refers to the essential framework of any structure, buildings, the human

body, and even leaves have skeletons.

In Law, a skeleton argument refers to an outline consisting of essential legal and evidential

arguments the drafter of the skeleton argument intends to put across. Just as the human skeleton

provides support for the human body, a legal skeleton argument provides the framework of the

legal argument to be put forward in the case and acts as the supporting structure on which the full

argument will be established.

A skeleton argument should be a concise N! detailed argument" they should merely summarise

the core issues about the Law and evidence in the case.

#keleton arguments are always written and they present the writer$s basic case to the %ourt and

opposing side in a case.

#keleton arguments are nota substitute for oral arguments.

Why are skeleton arguments file!

#keleton arguments are filed for legal and administrative purposes.

Legal re&uirement' In (enya, skeleton arguments are provided for under the %ivil )rocedure

*ules +- rder -- which governs pretrial directions and conferences. *ule + of that rder,

directs adherence to the pretrial &uestionnaire. /uestion + of that &uestionnaire reads 0Are youaware that you have an obligation to file and serve any skeleton argument to be used in the case

of list 3 days before the hearing date day?

!his therefore reminds advocates to ensure that they have complied with the direction to submita skeleton argument.

n an administrative level' #keleton arguments are intended to identify both for the parties and

the %ourt those issues which are contentious and which the %ourt will be called upon todeliberate and the Legal and other authorities to be relied upon in pursuit of the argument. In this

regard they prepare the %ourt and %ounsel for the main trial and arguments.

It is not a substitute for oral argument

When are skeleton arguments file!


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#keleton arguments are usually filed at the pretrial stage. !hey are used in both civil and

criminal litigation" from divorce proceedings, immigration matters, election petitions,

applications for 1udicial review to challenging procedural issues in criminal appeals.

Although they are compulsory, our research indicated that there are e2ceptions to this general

rule. In the 3(, from where our legal system has adopted %ommon Law and other principles,there are some circumstances in which skeleton arguments can be omitted.

4here the application does not warrant the filing of a skeleton argument because the

matter is brief and the issues are clear"

4here it is impracticable to file skeleton arguments owing to the urgency of the matter"

4hen the litigant is representing themselves. 5!hey are strongly advised to submit a

skeleton argument but can fail to do so with leave from the %ourt.6

ther situations where the %ourt may direct.

Who files them!

#keleton arguments can be filed by either of the litigants 7 the plaintiff8appellant or the

defendant8respondent. !hey can also be filed by other parties who wish to make representations

at the hearing. 9or e2ample in the case of 1udicial review, other parties not directly litigant in the

matter may have an interest.

#keleton argument can be filed in response to the opposing side$s skeleton argument. 4hen aplaintiff files their skeleton argument, the respondent files a reply skeleton argument.

"o# are they #ritten!

#keleton arguments are guided by legal procedural principles and policy re&uirements. !hese

guidelines dictate the format and content of skeleton arguments. In the 3(, the content and time

re&uirements vary slightly depending on the purpose of the skeleton argument and the %ourt. 9or

e2ample the specific re&uirements of a skeleton argument intended for an Appeal %ourt where

the appellant is appealing a criminal conviction, will vary slightly from one intended for a %ivil

%ourt in a 1udicial review hearing. Likewise the time lines will also differ. In (enya, the %ivil*ules +- dictate : days prior to the %ourt hearing.

4e will look at guidelines directed by the #upreme %ourt of Northern Ireland and

Administrative %ourt guidelines of ;ngland and 4ales.


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9orm and %ontent of #keleton Arguments 5should be in chronological order6

#keleton arguments must be typed and state'

!he full title and record number of the proceedings"

!he name of the party providing the skeleton argument"

!he name of counsel appearing on behalf of that party 5this does not apply where the

litigant is acting in person"

4here the points in the skeleton argument arise from portions of a transcript of evidence

or from police interviews, the relevant portion or portions of the transcript or police

interview"

4here there are references to legislation, the relevant statute, article, section, regulation,

etc"

4here there are references to authorities the proposition of law that the authority

demonstrates should be clearly stated. Authorities and, if appropriate, the part of the

1udgment that supports the proposition should be cited with reference to the particular

page number and 5where available6 paragraph reference for the passage in the case,

te2tbook or 1ournal

#chedules

;ach skeleton argument should have the following schedules, where appropriate"

A list of authorities$

o 9ull citations should be given 5including of unreported cases6, including page

numbers and, where available, paragraph reference.

o !he main authorities upon which a party is relying, especially those that counsel

definitely intendsto cite to the court , should be listed first and differentiated from

those that may be relied upon. !he list number for these main authorities should

also be marked with an asterisk. !his applies to cases, te2tbooks, articles and

statutes.

A chronology rele%ant e%ents to be provided by the applicant.

o It will be assumed that this is agreed between the applicant and respondent unless

the skeleton argument states otherwise.


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o In criminal appeals a list of the interviews being relied upon, set out in

chronological order. !hese references should include the page number in elivery of #keleton Arguments

#ub1ect to any contrary direction by the court

!he applicant shall lodge in the court and a copy to the respondent and any other party askeleton argument and all related documents at least ten working days before the date

fi2ed for the hearing"

!he respondent shall lodge in the court and copy to the applicant and any other party a

skeleton argument and all related documents at least five working days before the date

fi2ed for hearing"

Any other party shall lodge in the court and copy to all other parties a skeleton argument

and all related documents at least five working days before the date fi2ed for hearing"

9our copies of the skeleton argument and related documents must be lodged with the

court"

;lectronic %ommunication

!he use of email reduces significantly the time re&uired for processing cases. #keleton

arguments, anne2es and copies of authorities and any other related documents should,

where possible, be submitted to the relevant court by email"

4here the skeleton arguments anne2es and copies of related authorities and documents

are submitted electronically to the court and other parties the time scale for submission isreduced by one working date"

4here electronic communication is used in accordance with paragraph -+ there is no

need to also lodge hard copies as provided by paragraph -. where it is not possible to

send copes of authorities by email and re&uisite number of copies shall be lodged in the

court on the same day that the emails are sent


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A%antages of skeleton arguments

#ave time" they give the %ourt and the opposing side a clear overview of what to e2pect

and focus the case on the contentious issues. !herefore research can be focused"

Improve efficiency of proceedings" the Judge does not have to go through heaps ofpaperwork to understand the argument and ?e8#he can concentrate their own note taking

on the important issues"

Disa%antages of skeleton arguments

In (enya we do not have a computeri=ed system 7 3nlike the 3(, for e2ample, one

cannot send the 1udge and respondent the skeleton arguments by email to speed up time.

4e hope that our courts will consider agreeing to have these sent on email to the

respective registry and thereafter have the hard copy filed"

A poor skeleton argument can scuttle the drafter$s case which is dire for the client and

may give rise to incompetence or misconduct allegations.

Referen&es'

o !he %ivil )rocedure Act (Cap. +-) %ivil )rocedure *ules, +- *ules under

#ection @- 5+-6 444B Available from

http'88www.kenyalaw.org8klr8fileadmin8pdfdownloads8!?;C%IDILC)*%;>3*;C*3L;#C+-.pdf. Accessed E8:8+--

o ?er Fa1esty$s %ourt #ervice 5+--6 444Bnformation on !keleton arguments

and Court hearingsAvailable from http'88search.hmcourts

service.gov.uk8kbroker8dca8hmcs8search.lsim

&tHskeletonarguments...srHnhH-csHiso@@K

-scHhmcssmHmtH-toHhaH--@lnHen. Accessed M8:8+--

o !he Northern Ireland %ourt #ervice 5+K6 "ractice #irection $%&'' !upreme

Court of udicature of *orthern reland 444B Available from

http'88www.&ourtsni.gov.uk. Accessed :88:8+--
http://www.kenyalaw.org/klr/fileadmin/pdfdownloads/THE_CIVIL_PROCEDURE_RULES_2010.pdfhttp://www.kenyalaw.org/klr/fileadmin/pdfdownloads/THE_CIVIL_PROCEDURE_RULES_2010.pdfhttp://search.hmcourts-service.gov.uk/kbroker/dca/hmcs/search.lsim?qt=skeleton+arguments...&sr=0&nh=10&cs=iso-8859-1&sc=hmcs&sm=0&mt=1&to=0&ha=118&ln=enhttp://search.hmcourts-service.gov.uk/kbroker/dca/hmcs/search.lsim?qt=skeleton+arguments...&sr=0&nh=10&cs=iso-8859-1&sc=hmcs&sm=0&mt=1&to=0&ha=118&ln=enhttp://search.hmcourts-service.gov.uk/kbroker/dca/hmcs/search.lsim?qt=skeleton+arguments...&sr=0&nh=10&cs=iso-8859-1&sc=hmcs&sm=0&mt=1&to=0&ha=118&ln=enhttp://search.hmcourts-service.gov.uk/kbroker/dca/hmcs/search.lsim?qt=skeleton+arguments...&sr=0&nh=10&cs=iso-8859-1&sc=hmcs&sm=0&mt=1&to=0&ha=118&ln=enhttp://www.courtsni.gov.uk/http://www.courtsni.gov.uk/http://www.courtsni.gov.uk/http://www.courtsni.gov.uk/http://www.courtsni.gov.uk/http://www.courtsni.gov.uk/http://www.kenyalaw.org/klr/fileadmin/pdfdownloads/THE_CIVIL_PROCEDURE_RULES_2010.pdfhttp://www.kenyalaw.org/klr/fileadmin/pdfdownloads/THE_CIVIL_PROCEDURE_RULES_2010.pdfhttp://search.hmcourts-service.gov.uk/kbroker/dca/hmcs/search.lsim?qt=skeleton+arguments...&sr=0&nh=10&cs=iso-8859-1&sc=hmcs&sm=0&mt=1&to=0&ha=118&ln=enhttp://search.hmcourts-service.gov.uk/kbroker/dca/hmcs/search.lsim?qt=skeleton+arguments...&sr=0&nh=10&cs=iso-8859-1&sc=hmcs&sm=0&mt=1&to=0&ha=118&ln=enhttp://search.hmcourts-service.gov.uk/kbroker/dca/hmcs/search.lsim?qt=skeleton+arguments...&sr=0&nh=10&cs=iso-8859-1&sc=hmcs&sm=0&mt=1&to=0&ha=118&ln=enhttp://www.courtsni.gov.uk/


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o !he Finistry f Justice 5+--6"ractice #irections444B Available from

www.1ustice.gov.uk
http://www.justice.gov.uk/http://www.justice.gov.uk/

Documents

Understanding Skeleton Arguments (Important)