By Celia Kitzinger, 28th July 2024
Why were members of the public asked to pay £626 to read skeleton arguments from a case in the Court of Appeal?
Not me. I got them for free after I asked the lawyers, one of whom asked the judges during the course of the hearing whether I could have them. The judges approved their release to me (in anonymised form) without mentioning any fee[i].
But members of the public don’t normally have a “hotline” to the judges like this. Few other members of the public know in advance who the lawyers are likely to be, and still fewer feel it’s appropriate (or even acceptable) to send them emails asking for their skeleton arguments. Most people can’t count on the lawyers – and, as it turned out, at least two of the three judges – knowing them from previous meetings or by reputation, and apparently feeling positively disposed towards granting their request on that basis. It feels as though my (free) access to the skeleton arguments was because I got special treatment. While I’m grateful for the arrangements made for the Court Office to send me the skeleton arguments, that doesn’t translate into “open justice” or “transparency” for the public more generally.
Many members of the public want to read to read skeleton arguments and have legitimate reasons for wanting to do so.
This particular case (Re PC, 18 July 2024) concerns end-of-life decisions for a woman in a “prolonged disorder of consciousness”. The other people who asked the Court Office for the skeleton arguments include: a consultant in rehabilitation; two PhD students from Cardiff University, one researching family experience of the Court of Protection and the other researching court end-of-life decision-making; an academic researcher specialising in prolonged disorders of consciousness; and a staff member of the charity Compassion in Dying, that works to improve healthcare policy at the end of life. Most of them had watched at least part of the hearing as it was happening, live, but had been unable to follow it without the skeleton arguments – a problem I also experienced.
All these people – and, as far as I know, all other members of the public who asked the Court Office for skeleton arguments – were sent a letter telling them to make a formal application, and pay an application fee of £626[ii].
This is an extract from the email. It quotes Master Bancroft-Rimmer, a senior lawyer in the Court of Appeal[iii], who seems to have been consulted by court staff before they responded to requests from the public:
“If you wish to apply for a copy of the skeleton arguments from the court file, you are required to make a formal application for permission, pursuant to CPR 5.4C (2) and PD 5A, paragraph 4.3, on an application notice (form N244) with the court fee of £626 or a fee remission certificate.”
This response raises virtually impenetrable barriers to transparency and open justice.
Cost as a barrier to transparency
Charging the public £626 to even ask for the skeleton arguments pretty much blocks the request. It’s an outrageous amount of money to expect people to pay for the chance of getting to read three electronic documents (around 20 pages each) which, in this case, have not only already been prepared for the court, but have also been anonymised – on judicial instruction – and lodged with the Court Office.
Nobody who got in touch with me about this even considered paying up. I wouldn’t either! Some people gave up at this point and that was the end of “open justice” as far as they were concerned.
There were some suggestions for ways around the problem. One person decided to write direct to the lawyers, bypassing the Court Office, in the hope of obtaining the documents for free from them. Another suggested finding someone eligible for the “fee remission certificate”[iv] mentioned in the email who’d be willing to apply without having to pay, and who would then share the documents with others who wanted them. I’m not sure whether that would be lawful, or what conditions are (or could be) attached to documents we receive from the court.
Since I’d already received the skeletons (for free), I wrote to the Court Office myself, asking if I could get the court’s permission to share them. I was told on Friday 26th July, a week after the hearing, that the judges who heard the appeal have confirmed that I may share my electronic copies of the redacted skeleton arguments with colleagues and members of the public. If you want them (for free!), email me via the Open Justice Court of Protection Project contact form (here).
It’s a pragmatic workaround, under the circumstances, but not a good model for transparency in the future. It can’t routinely be me who supplies the public with free skeleton arguments from the Court of Appeal.
Procedural requirements as a barrier to transparency
Even supposing that members of the public were willing to entertain the possibility of paying £626 (which we clearly are not), there’s also the challenge of finding the right form and working out how to fill it in.
A competent google search on the alphabet soup of initialisations in that email from Master Bancroft-Rimmer (“CPR 5.4C (2)”, “PD 5A”, “N244”) does yield – at least for me – the relevant information. It undoubtedly helps, though, that I already know that “CPR” stands for “Civil Procedure Rules” and “PD” stands for “Practice Direction” – and I’m already familiar with these rules and directions, so perhaps my google search was “customised” to find them again quickly[v]. Nobody else who’d asked for the skeleton arguments was confident of what exactly they needed to do to apply for them, even if they had been willing to pay the fee.
Lawyers don’t seem to realise how challenging their taken-for-granted terminology can be for the rest of us. Even phrases like “pursuant to” (used by Master Bancroft-Rimmer) are opaque to many people. Looking back at the email, there are fairly obvious ways in which its content could have been expressed in Plain English, more appropriate for the non-lawyers to whom the email was sent. It would also have helped to send a link to the relevant form to fill in. Some attention to accessibility would at least create an impression that the court was seeking to facilitate transparency, rather than putting insuperable barriers in our path.
Form N244 is relatively accessible, at least by comparison with the Rules and Practice Directions, and it comes with “Notes for Guidance” supplied. But it seems more suited for applications from parties to vary or set aside a judgment, or to adjourn a hearing (examples given in the Guidance) than for requests from the public for skeleton arguments. I can see the form could be used to request a skeleton argument, but it’s clearly not designed with that purpose in mind. Members of the public confronted with Q3 (“What order are you asking the court to make and why?”) said things like: “but I’m not asking the court to make an order – I’m just requesting the skeleton arguments”). This form is yet another barrier to open justice.
So, in this case, there was opaque and off-putting signposting from Master Bancroft-Rimmer as to what procedure members of the public should follow if they wanted to pursue access to the documents; and the relevant form is ill-designed for that procedure.
Delay as a barrier to transparency
I only obtained the skeleton arguments for this appeal after the hearing had finished.
At lunchtime, I gave up watching the live hearing because I couldn’t understand what was going on.
Without the skeletons, I had no idea – after two and a half hours of watching the applicant barrister make oral submissions – what the grounds of appeal actually were. That’s fatal to any adequate understanding of an appeal hearing!
There were two different reasons why I didn’t receive the skeleton arguments in a timely fashion.
First, because the Civil Procedure Rules require barristers to ask the judges’ permission before sending skeleton arguments out to anyone (like me) who isn’t an “accredited” court reporter. They didn’t get the opportunity to do that until 2.00pm on the day of the hearing.
Second, because the judges decided, perfectly reasonably, that the skeletons should be released to me only in redacted (anonymised) form, without the names of people whose identities are protected by the reporting restrictions[vi]. The problem was that the legal teams had not already prepared anonymised skeletons for the public, so they needed to redact them before sending them to me. Counsel for the ICB, Rhys Hadden, was aware of the problem: he said: “I don’t know if it’s feasible for it to happen as I’m on my feet (“on my feet” means “while I’m standing up and making my submissions to the judges”) but in any case, we can do that and otherwise we may send them at the end of the hearing”. (2mins 57 secs, Part 2, Re PC).
Non-availability of redacted skeleton arguments has been a problem before for observers in the Court of Appeal. I blogged about it here: How not to do open justice in the Court of Appeal. The published judgment in that case – in which both an “accredited” journalist and I were denied access to skeleton arguments during the hearing, because they hadn’t been redacted in anticipation of our requests, includes this paragraph:
“Regrettably, however, and in breach of the requirements set out in para 33 of PD52C, the parties’ open skeletons were not all formulated in a way they considered suitable for disclosure to court reporters. As a result, the court was unable immediately to meet requests by two observers to provide the skeletons, and it was more difficult for those observers to follow the arguments during the hearing. In future, this is a point which should be considered by the parties and the court during preparation of an appeal.“ (§23, In the matter of P (Discharge of Party), [2021] EWCA Civ 512
Yet here I was, three years later, in the same position – listening to a hearing I didn’t understand because I hadn’t yet been able to access the skeleton arguments.
On receipt of the applicant’s skeleton argument, the grounds of appeal became pellucidly clear: each of the four grounds of appeal is numbered and given a heading in bold, followed by a clear exposition. So then, I was able to watch the recorded appeal hearing on YouTube, and it all made perfect sense. But I should have been given the resources I needed to make sense of it at the time.
The delay in sending me the skeletons was a delay in open justice.
Open justice delayed is open justice denied.
Why timely public access to skeleton arguments is essential for transparency
As a seasoned court reporter (I’ve watched more than 550 court hearings), I was very well-placed to be able to understand the Court of Appeal hearing as it unfolded in real time.
I’d already watched this case in the Court of Protection, blogged about it (here) and read the judgment that was under appeal (NHS North Central London Integrated Care Board v PC & Ors [2024] EWCOP 31 (T3). Additionally, the matter of best interests decision-making in relation to clinically assisted nutrition and hydration for people in a prolonged disorder of consciousness is at the centre of my work as an academic scholar[vii].
Given this background, I expected to write about the hearing as it was happening by live-tweeting on Twitter/X, so that other members of the public could learn what happens when a Court of Protection case reaches the Court of Appeal. Instead, my only live tweets were about the failure of open justice.
After the hearing was finished and I’d received the skeleton arguments, I also tweeted the four grounds of appeal as revealed by the applicant’s skeleton argument. It cannot possibly be against the law (I decided!) to publish the grounds of appeal from a court hearing held in public. (Tweet thread is here: https://x.com/KitzingerCelia/status/1816722272020836852)
Listening again to the applicant’s submission on the recording with the skeleton in front of me, I can see the problems I faced:
- The first ground of appeal (“declining to adjourn to obtain expert medical evidence”) is pretty much unrecognizable from the way it was presented in court, where it appears (without the skeleton) to be an extended complaint that the second-opinion medical witness had changed his mind (about the patient’s likely experience of pain) and failed to comply with the national Guidance.
- The second ground for appeal (“conducting an assessment of PC’s experience of pleasure”) was alluded to, but never separately articulated or identified as a ground of appeal.
- The third ground of appeal (“failing to determine the relevance of covert consciousness”) was presented in a form I understood at the time.
- The fourth ground of appeal (“deciding that it was appropriate to cease CANH for someone with a low burden of care who had expressed no wishes not to have care”) – which is the one applicant counsel started his submissions with – was confusing for an observer who didn’t have the skeleton because of frequent interventions from the judges which derailed its internal logic.
None of this is to be critical of the advocate concerned. His oral submissions assumed – as he was of course entitled to assume – that the judges had all read his skeleton and so he didn’t need to repeat the information in it. As a result, I was lost. I had no idea even how many grounds for appeal there were, let alone what they were.
This experience drives home precisely the extent to which “The availability of skeleton arguments […] deployed in open court hearings is essential to any meaningful concept of open justice” (Nicklin J in Hayden -v- Associated Newspapers Ltd [2022] EWHC 2693 (KB) [32]).
What can be done?
As far as I can tell, everything done by the lawyers, the judges, and the court staff both in relation to my request (which resulted in the skeletons eventually being sent to me for free) and in relation to other members of the public (who were told to formally apply and pay £626) was in accordance with the rules and practice directions.
Everyone followed the rules. It’s the rules that are the problem. The rules themselves undermine the judicial aspiration for transparency. They need to be changed.
Abolish the distinction between “accredited” and other court reporters
First, the rule that says the public have to apply to the Court for permission to obtain the skeleton arguments should be abolished. We should be entitled to skeleton arguments (which should be prepared in advance in anonymised form) as of right on the same basis as “accredited” court reporters (which means people with a relevant court security pass or journalists with a “press pass”). Like these “accredited” court reporters, we should be supplied with skeleton arguments on request before the hearing starts.
It’s simply impossible for the court to achieve the judicial aspiration for transparency so long as the rules continue to make an outdated distinction that privileges some court reporters (in particular the subset of journalists who are “accredited”) over the rest of us when it comes to access to court documents.
Mr Justice Nicklin, Chair of the new judicial Transparency and Open Justice Board ,said in a lecture earlier this year: “Developments in society, and in communications, mean that where journalists once sat in Courts, now sit a new breed of court reporters. Often representing or reflecting particular interests, they are providing welcome additional eyes and ears of the public in reporting what takes place in our Courts and Tribunals.”(Newcastle-upon-Tyne Law Society Annual Lecture 2024 )
But the unwarranted distinction in Civil Procedure Rule 5.4C between “accredited law reporters and accredited media reporters” on the one hand, and those of us who are neither lawyers nor journalists on the other, actively impedes this “new breed of court reporters” from doing the work of transparency and open justice.
Develop a clear procedure for access to skeletons by people watching via live-stream or recording
Civil Procedure Rule 5.4C seems to presume an in-person hearing, with court reporters attending in person (see §33)[viii]. This clearly needs updating.
The implication in the Rule is that paper copies of skeleton arguments will be supplied to “accredited” reporters and it’s stated that anyone else wanting copies must make an “oral” application (§33(5)). This clearly needs updating since it must recurrently be the case that more people are observing live-streamed hearings via YouTube than in the physical courtroom. We need to be sent electronic, not paper, copies of documents and we cannot make “oral” applications for them since we have no “oral” access to the courtroom when watching a hearing via YouTube. Nor is there any advertised provision for us to email the Court to request skeleton arguments in advance of the hearing, nor any space provided at the start of the hearing for us to have emailed applications for skeleton arguments heard. This rule is simply not fit for purpose in relation to court reporters observing remotely.
I’m told that the procedure for making skeleton arguments available to non-parties in digital form is currently under review. I don’t know if that review is limited to the Court of Appeal or if it’s a wider review, and I haven’t been consulted as part of this review (if any court reporters have been consulted, I’d love to hear from you).
I hope the review includes consideration of the basic requirements to get this to work in practice. At best, this would involve placing all the anonymised skeletons and other open-access documents on the dedicated Court of Appeal website alongside the case summary and YouTube link so that they can be downloaded by anyone (“accredited” or not) who wants them. I don’t think any of the courts does this – although I have seen skeletons posted on legal and campaigning websites and links to them from social media (with or without the need for court approval, I’m not sure): take a look at some in the footnote.[ix]
Failing that, and at a minimum, there should be public information that skeleton arguments are available, how to access them, and prompt response to requests in advance of the hearing.
In conclusion….
There are some very positive aspects of transparency in the Court of Appeal. Live-streaming (which is like watching a live television programme) is massively preferable to the Court of Protection’s use of MS Teams or Cloud Video Platform, which involves sending out links and logging in, and all the challenges of video-platforms. It’s also really positive that hearings are recorded and made publicly available on YouTube (see https://www.judiciary.uk/live-hearings/re-pc/).
But it turns out that simply watching the Court of Appeal hearing – either live or on the recording – is not in and of itself sufficient for transparency.
I very much doubt that the importance of skeleton arguments to the understanding of a case comes as any surprise to judges or to lawyers. The matter has been repeatedly raised in key judgments over the years (e.g. Cape Intermediate Holdings v Dring [2019] UKSC 38).
It’s time to fix it. Fixing it will require collaboration between the judiciary, lawyers, and HMCTS, in consultation with court reporters, to figure out how best to deliver on transparency with regard to skeleton arguments.
In the short-term, I would like to see judges take responsibility for ensuring that skeleton arguments have been anonymised in advance of hearings, that they are lodged with the Court Office, and that court reporters (accredited and otherwise) know how to get hold of them in a timely fashion, and without a charge. This might mean taking up a few minutes at the beginning of the hearing, after dealing with reporting restrictions and before moving to the substantive business of the hearing.
I’ve also raised the matter with the judiciary’s new Transparency and Open Justice Board and await developments.
Celia Kitzinger is co-director of the Open Justice Court of Protection Project. She has observed more than 550 hearings since May 2020 and written more than 100 blog posts. She is on LinkedIn (here), and tweets @KitzingerCelia
[i] You can watch the lawyer, Rhys Hadden, Counsel for the ICB, asking the judges, and see their responses in the YouTube video recording of the hearing – right at the beginning of Part 2, which covers the afternoon session. Part 2 Re PC YouTube video)
[ii] I think the fee is taken from here: https://www.gov.uk/government/publications/court-of-appeal-civil-fees-form-200/civil-appeals-office-fees-from-1-may-2024 (Thank you to Zena Bolwig who responded publicly to my Twitter enquiry as to how this fee could have been arrived at.)
[iii] The role of “Masters” in the Court of Appeal Office is outlined here: https://www.judiciary.uk/guidance-and-resources/judicial-authority-of-court-officers-in-the-court-of-appeal-civil-division/
[iv] I googled this and discovered the rules for obtaining a “fee remission certificate” are here: https://www.gov.uk/get-help-with-court-fees
[v] “CPR 5.4C (2)” means Civil Procedure Rules Part 5, which is called “Court Documents” (https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part05). The rule referred to here is Rule 5.4(C), “Supply of documents to a non-party from court records” (https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part05#5.4C). “PD 5A” means Practice Direction 5A (https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part05/pd_part05a) which is a supplement to Part 5 of the Civil Procedure Rules and deals with court documents. The form “N244” is here: https://www.gov.uk/government/publications/form-n244-application-notice
[vi] It’s somewhat ambiguous (at least to me) whether the judges gave permission at this point for the skeletons to be released only to me, or more broadly to observers generally. The rules indicate that each “non-accredited” court reporter is required to ask individually, and to give their reasons for wanting the skeletons. I believe I was the only such person with a request before the judges at the time the decision was being made. LJ Bean said “Subject to redactions being made, there’s no reason why skeletons shouldn’t be released, certainly to Professor Kitzinger” (2:46 mins into Part 2 Re PC). It may be that if asked by counsel they’d have confirmed at this point that they could also have been released to other members of the public – but that question was not raised.
[vii] I’m co-director of the Coma and Disorders of Consciousness Research Centre at Cardiff University. l also served on the British Medical Association core editorial group that produced guidance on clinically assisted nutrition and hydration and on the Royal College of Physicians Guideline Development Group that produced guidance on prolonged disorders of consciousness.
[viii] This is odd, given that there is a note at the bottom saying the Rule was updated in April 2024, by which time there had been probably hundreds of live-broadcasts from the court. Live-streaming of selected cases in the Court of Appeal began in 2019 to improve public access to, and understanding of, the work of the courts. For more information, including links to upcoming life-streamed Court of Appeal cases, see: https://www.judiciary.uk/the-court-of-appeal-civil-division-live-streaming-of-court-hearings/
[ix] Here are a few examples from Twitter/X.
Promoting Open Justice in the Court of Protection 