WWRT Ltd v Carosan Trading Ltd et al

EASTERN CARIBBEAN SUPREME COURT BRITISH VIRGIN ISLANDS IN THE HIGH COURT OF JUSTICE (COMMERCIAL DIVISION) CLAIM No: BVIHC (COM) 2021/0096 BETWEEN: WWRT LTD Claimant and (1) CAROSAN TRADING LTD (2) BORIS KAUFMAN Defendants Appearances: Mr. Andrew Ayres QC and Ms. Sophia Hurst, with them Dr. Alicia Johns of Conyers for the Claimant Mr. Brian Lacy and Mr. Alexander Muksinov of Ogier for the First Defendant Mr. Richard Morgan QC and Ms. Amanda Hadkiss, with them Mr. Richard Brown of Carey Olsen for the Second Defendant __________________________________ 2021 December 6 __________________________________ JUDGMENT

[1]JACK, J [Ag.]: This is yet another case in which one party has served skeleton arguments of inordinate length.

[2]In AO Alfa-Bank v Kipford Ventures,1 I said of the defendant’s skeleton: “[7] The latter is a closely written 54 pages in single type with about 26,500 words. A similar issue as to the excessive length of skeletons arose in Ali Ganjaei v Sable Trust Ltd and another,2 where I said: “[66] [Counsel] made very extensive written submissions. In this jurisdiction, parties are expected to serve skeleton arguments and then develop their submission orally. [Counsel] did not serve a skeleton. Instead he served a closely typed 46 page document. The word-count is 19,296. By contrast [opposing counsel’s] skeleton was 5,840 words long. This was already a fairly fleshy skeleton, but it is dwarfed by [the other] submissions which were more than three times as long. [67] It is not in my judgment appropriate to make written submissions of such prolixity. It breaches the overriding objective in multiple ways. First, it forces the Court to allot more of its resources to the case than is appropriate, because the Court has to read the submissions: CPR 1.1(2)(e). Second, it imposes unnecessary additional expense on all the parties: [The party which is] paying for the submissions, and the other parties, who have to employ lawyers to read the submissions: CPR 1.1(2)(b). Third, the intention is to give [that party] an advantage in exposing the judge to that party’s submissions at greater length than the other parties’ submissions, with the intended consequence that the parties are not on an even footing: CPR 1.1(2)(a). In fact, if this was the intention, it fails. It has been recognised since classical times that in advocacy less is more,3 but an intended breach of the overriding objective should not be countenanced. Logorrhoea has no place in the Commercial Court.”

[8]A reasonable length of a skeleton in a heavy application such as this is 25 pages in 12 point type and one and a half line spacing.”

[3]In the current case, the claimant’s main skeleton argument runs to 59 pages. Although the line-spacing is one and a half, the type appears to be 11 or 10.5-point Times Roman. The word count is 25,843 words. The claimant’s supplemental skeleton dealing with a point on evidence is a further 11 pages. This mercifully is in [2021] ECSCJ No 466 (15th February 2021) at para [66]-. a larger type. It comprises 4,012 words. The total word count is therefore 29,855 words.

[4]The word count of War and Peace4 is 587,287 words.5 The combined word-count of the claimant’s skeletons is therefore 5.08 per cent of the length of that novel.

[5]The filing of skeletons of such inordinate length is particularly surprising, since I had my assistant write on 19th November 2021 in the case of FG v HJ6 to Dr. Johns, who jointly submitted the two offending skeletons in this current matter, in the following terms: “[The judge] notes that your skeleton argument runs to 62 pages. He has calculated that there are about 22,300 words in it. This is about 3.8 per cent of the word count of War and Peace. This is grossly excessive for a one day hearing. He has no intention of reading something of such inordinate length: see CPR 1.1(2)(e). In addition to the case to which he has already drawn your attention, in Von der Heydt Invest SA v Mex Clearing Ltd,7 counsel for applicant produced a 34 page submission for a modest application to produce documents under CPR 28.16. He again told counsel to resubmit a skeleton of reasonable length and summarily assessed the costs of the other parties, whose unfortunate counsel had had to read the missive. The judge suggests you resubmit your skeleton limited to 25 pages one- and-a-half line spaced in 12 point type if you wish to avoid a similar consequence.”

[6]If there had been enough time, I would again have required the claimant to resubmit its skeletons at an acceptable length. However, since I only saw the skeletons over the weekend, I have had little alternative but to read them. I will, however, consider applications in respect of the costs incurred by the service of such documents. In Mex Clearing this included summarily assessing the costs incurred by the other parties in reading the missive. Other potential orders include disallowing the cost of preparation of the skeletons and slashing the brief fees of counsel concerned. (This of course depends on the claimant otherwise being the receiving party in respect of any costs order.) I shall hear such submissions as the parties wish to make. Any party seeking a costs order in respect of the time spent reading the claimant’s skeletons should submit a schedule of the costs claimed.

[7]I should add that, since handing down judgment in the Ali Ganjaei and Kipford matters, I have become aware that logorrhoea can be a symptom of a recognised psychiatric disorder, Warnick’s aphasia. Any advocate suffering from this condition should write to the Court, so that reasonable adjustments can be made in respect of the disability.

Adrian Jack

Commercial Court Judge [Ag.]

By the Court

Registrar

EASTERN CARIBBEAN SUPREME COURT BRITISH VIRGIN ISLANDS IN THE HIGH COURT OF JUSTICE (COMMERCIAL DIVISION) CLAIM No: BVIHC (COM) 2021/0096 BETWEEN: WWRT LTD Claimant and (1) CAROSAN TRADING LTD (2) BORIS KAUFMAN Defendants Appearances: Mr. Andrew Ayres QC and Ms. Sophia Hurst, with them Dr. Alicia Johns of Conyers for the Claimant Mr. Brian Lacy and Mr. Alexander Muksinov of Ogier for the First Defendant Mr. Richard Morgan QC and Ms. Amanda Hadkiss, with them Mr. Richard Brown of Carey Olsen for the Second Defendant __________________________________ 2021 December 6 __________________________________ JUDGMENT

[1]JACK, J [Ag.]: This is yet another case in which one party has served skeleton arguments of inordinate length.

[2]In AO Alfa-Bank v Kipford Ventures, I said of the defendant’s skeleton: “

[8]A reasonable length of a skeleton in a heavy application such as this is 25 pages in 12 point type and one and a half line spacing.”

[3]In the current case, the claimant’s main skeleton argument runs to 59 pages. Although the line-spacing is one and a half, the type appears to be 11 or 10.5-point Times Roman. The word count is 25,843 words. The claimant’s supplemental skeleton dealing with a point on evidence is a further 11 pages. This mercifully is in a larger type. It comprises 4,012 words. The total word count is therefore 29,855 words.

[4]The word count of War and Peace is 587,287 words. The combined word-count of the claimant’s skeletons is therefore 5.08 per cent of the length of that novel.

[5]The filing of skeletons of such inordinate length is particularly surprising, since I had my assistant write on 19th November 2021 in the case of FG v HJ to Dr. Johns, who jointly submitted the two offending skeletons in this current matter, in the following terms: “ “[The judge] notes that your skeleton argument runs to 62 pages. He has calculated that there are about 22,300 words in it. This is about 3.8 per cent of the word count of War and Peace. This is grossly excessive for a one day hearing. He has no intention of reading something of such inordinate length: see CPR 1.1(2)(e). In addition to the case to which he has already drawn your attention, in Von der Heydt Invest SA v Mex Clearing Ltd, counsel for applicant produced a 34 page submission for a modest application to produce documents under CPR 28.16. He again told counsel to resubmit a skeleton of reasonable length and summarily assessed the costs of the other parties, whose unfortunate counsel had had to read the missive. The judge suggests you resubmit your skeleton limited to 25 pages one-and-a-half line spaced in 12 point type if you wish to avoid a similar consequence.”

[6]If there had been enough time, I would again have required the claimant to resubmit its skeletons at an acceptable length. However, since I only saw the skeletons over the weekend, I have had little alternative but to read them. I will, however, consider applications in respect of the costs incurred by the service of such documents. In Mex Clearing this included summarily assessing the costs incurred by the other parties in reading the missive. Other potential orders include disallowing the cost of preparation of the skeletons and slashing the brief fees of counsel concerned. (This of course depends on the claimant otherwise being the receiving party in respect of any costs order.) I shall hear such submissions as the parties wish to make. Any party seeking a costs order in respect of the time spent reading the claimant’s skeletons should submit a schedule of the costs claimed.

[7]the latter is a closely written 54 pages in single type with about 26,500 words. a similar issue as to the excessive length of skeletons arose in Ali Ganjaei v Sable Trust Ltd and another, where I said: “

[7]I should add that, since handing down judgment in the Ali Ganjaei and Kipford matters, I have become aware that logorrhoea can be a symptom of a recognised psychiatric disorder, Warnick’s aphasia. Any advocate suffering from this condition should write to the Court, so that reasonable adjustments can be made in respect of the disability. Adrian Jack Commercial Court Judge [Ag.] By the Court < p style=”text-align: right;”> Registrar

[66][Counsel] made very extensive written submissions. In this jurisdiction, parties are expected to serve skeleton arguments and then develop their submission orally. [Counsel] did not serve a skeleton. Instead he served a closely typed 46 page document. The word-count is 19,296. By contrast [opposing counsel’s] skeleton was 5,840 words long. This was already a fairly fleshy skeleton, but it is dwarfed by [the other] submissions which were more than three times as long.

[67]It is not in my judgment appropriate to make written submissions of such prolixity. It breaches the overriding objective in multiple ways. First, it forces the Court to allot more of its resources to the case than is appropriate, because the Court has to read the submissions: CPR 1.1(2)(e). Second, it imposes unnecessary additional expense on all the parties: [The party which is] paying for the submissions, and the other parties, who have to employ lawyers to read the submissions: CPR 1.1(2)(b). Third, the intention is to give [that party] an advantage in exposing the judge to that party’s submissions at greater length than the other parties’ submissions, with the intended consequence that the parties are not on an even footing: CPR 1.1(2)(a). In fact, if this was the intention, it fails. It has been recognised since classical times that in advocacy less is more, but an intended breach of the overriding objective should not be countenanced. Logorrhoea has no place in the Commercial Court.”