I Didn’t Have Time To Write A Short Letter/Statement/Report So I Wrote A Long One Instead

…as Mark Twain may or may not have said.

There was a case that I missed when it was handed down:  Mylward v Weldon (Chancery Court of England, 15 February 1595). Thank you to Major Clanger (whoever you may be) and barrister Jacob Gifford Head who brought it my attention via Bluesky. It’s regularly referred to in the context of over-long legal documents eg see David Hart KC’s Should lawyers get named and shamed for being boring? (5 December 2011) and Gordon Exall’s Useless Bundles (10 July 2014)

In Mylward v Weldon the court was faced with a party that had filed a pleading which was 120 pages in length which the court considered could have been confined to 16 pages and which it found to have been motivated by the “malicious purpose” of increasing the costs of the other party in the litigation. The court, in an admirably concise one-paragraph judgment, found that: “such an abuse is not in any sort to be tolerated, proceeding of a malicious purpose to increase the defendant’s charge, and being fraught with much impertinent matter not fit for this Court; it is therefore ordered, that the Warden of the Fleet shall take the said Richard Mylward, alias Alexander, into his custody, and shall bring him into Westminster Hall, on Saturday next, about ten of the clock in the forenoon, and then and there shall cut a hole in the myddest of the same engrossed replication (which is delivered unto him for that purpose), and put the said Richard’s head through the same hole, and so let the same replication hang about his shoulders, with the written side outward; and then, the same so hanging, shall lead the same Richard, bare headed and bare faced, round about Westminster Hall, whilst the Courts are sitting, and shall shew him at the bar of every of the three Courts within the Hall, and shall then take him back again to the Fleet, and keep him prisoner, until he shall have paid 10l. to Her Majesty for a fine, and 20 nobles to the defendant, for his costs in respect of the aforesaid abuse, which fine and costs are now adjudged and imposed upon him by this Court, for the abuse aforesaid.”

Basically, a hole was to be cut in the middle of the document, the document (“with the written side outwards”) was then to be put over the offending party’s head and he was then to be led around the courts before he was then imprisoned until a large fine had been paid.

I would like this a lot if I didn’t have half an eye on the risk of being the one paraded.

But it did bring me back to how the planning system might be reformed so as to be faster and simpler.

On Bluesky I made the only half-serious suggestion that the principle in Mylward v Weldon should apply to every document in the planning system.

This, briefly, is the serious half of that suggestion (which, before you ask, does not apply to blog posts):

• Most documents can be halved in length by ensuring that they are not internally repetitious or do not quote at length from well-known sources and other documents in the same pack. Why for instance do design and access statements have long passages on policy which replicate the planning statement? Why for instance do environmental statements quote policies at length when there is no reference at all to policy within Schedule 4 of the Environmental Impact Assessment Regulations? Why are the longest chapters in an environmental statement often in relation to the issues that are least relevant to the eventual decision or cover matters that are to be addressed in a straight-forward way by means of condition or indeed other regulatory controls?

• Most documents obfuscate through lack of clarity (including through imprecise use of grammar or terms) or through seeking to over-analyse matters which are for the decision-maker to determine (contrast (1) the concise conclusions within most inspectors’ decision letters following a written representations appeal with (2) the length of the opposing parties’ statements of case).

• Reports to planning committee are not fit for purpose: onerous for officers to prepare; not informative for councillors (how much can they actually read and take in of these massive documents?); often, through their length, adding to the risk of legal error through internal inconsistencies or through the difficulties of ensuring that they are thoroughly proofread for errors, and off-putting to anyone participating in what is meant to be a transparent system, let alone thinking of standing as a local councillor. As long as we can make sure, through improvements in digital planning, that everything is as accessible as possible, why can’t we work to a system where the report focuses on the officers’ analysis and conclusions, simply referring back to a document, available online for all to see before the report is published, which could be agreed between officers and the applicant at a previous stage in the process and which summarises (1) the proposal (2) relevant national and local policies and (3) third party representations and any agreed responses to these representations?

• National development management policies to reduce the length of local plans? Standardised lists of conditions checked for plain English and lack of ambiguity? Standardised section 106 agreement templates, similarly checked? Bring them on!

• Surely we should, as a general principle, move to a system where the Government provides an indicative word, page or file size limit for each category of document so as to manage expectations, to instil discipline and to be a benchmark against which the reasonableness of parties’ conduct is measured. Of course this has to be applied with some sensitivity but its purpose would be to weed out disproportionately long documents (which not only have to be written, at high cost, but also have to be read, often by many people, at high cost). But none of this is completely new ground:

• In relation to planning appeals, statements of case should usually not exceed 3,000 words. (Extend that to planning statements at application stage!)
• Similarly, a limit of 3,000 words is usually set for hearing statements submitted in relation to a local plan examination
• Proofs of evidence exceeding 1,500 words must be accompanied by a summary.
• In Planning Court litigation there are page limits for Statements of Facts and Grounds (40 pages) and for skeleton arguments (25 pages – not less than 12 point font and 1.5 line spacing (including footnotes)). Parties submit overlong document bundles to the court or exceed these size limits at their peril. See for instance the comments of Holgate J (now Holgate LJ following his recent well-deserved appointment to the Court of Appeal) in R (Network Rail Infrastructure Limited) v Secretary of State (Holgate J, 8 September 2017):

“I regret the need to have to make some observations on the inappropriate manner in which the claim was put before the court. I do so in order to make it plain to litigants that the practices that were followed in this case, and regrettably sometimes in others, are not acceptable. Notwithstanding the clear statement by Sullivan J (as he then was) in R (Newsmith Stainless Ltd) v Secretary of State for Environment, Transport and the Regions [2001] EWHC (Admin) 74 at paragraphs 6-10, this claim was accompanied by six volumes comprising over 2,000 pages of largely irrelevant material. The Claimant’s skeleton argument was long, diffuse and often confused. It also lacked proper cross-referencing to those pages in the bundles which were being relied upon by the Claimant. The skeleton gave little help to the court.

Shortly before the hearing the court ordered the production of a core bundle for the hearing not exceeding 250 pages. During the hearing, it was necessary to refer to only 5 or 6 pages outside that core bundle. Ultimately, as will be seen below, the claim succeeds on one rather obvious point concerned with the effect of the Grampian condition in the 2016 permission. But this had merely been alluded to in paragraph 76 and the first two lines of paragraph 77 of the skeleton. Indeed, the point was buried within the discussion of Ground 3 of the claim, a part of the Claimant’s argument to which it does not belong. Nevertheless, Mr Tim Buley, who appeared on behalf of the Defendant, acknowledged that he had appreciated that this point could be raised. He was ready to respond to it.

Certainly, for applications for statutory review or judicial review of decisions by Planning Inspectors or by the Secretary of State, including many of those cases designated as “significant” under CPR PD 54E, a core bundle of up to about 250 pages is generally sufficient to enable the parties’ legal arguments to be made. In many cases the bundle might well be smaller. Even where the challenge relates to a decision by a local planning authority, the size of the bundle need not be substantially greater in most cases.

Prolix or diffuse “grounds” and skeletons, along with excessively long bundles, impede the efficient handling of business in the Planning Court and are therefore contrary to the rationale for its establishment. Where the fault lies at the door of a claimant, other parties may incur increased costs in having to deal with such a welter of material before they can respond to the Court in a hopefully more incisive manner. Whichever party is at fault, such practices are likely to result in more time needing to be spent by the judge in pre-reading material so as to penetrate or decode the arguments being presented, the hearing may take longer, and the time needed to prepare a judgment may become extended. Consequently, a disproportionate amount of the Court’s finite resources may have to be given to a case prepared in this way and diverted from other litigants waiting for their matters to be dealt with. Such practices do not comply with the overriding objective and the duties of the parties (CPR 1.1 to 1.3). They are unacceptable.

The Court has wide case management powers to deal with such problems (see for example CPR 3.1). For example, it may consider refusing to accept excessively long skeletons or bundles, or skeletons without proper cross-referencing. It may direct the production of a core bundle or limit the length of a skeleton, so that the arguments are set out incisively and without “forensic chaff”. It is the responsibility of the parties to help the Court to understand in an efficient manner those issues which truly need to be decided and the precise points upon which each such issue turns. The principles in the CPR for dealing with the costs of litigation provide further tools by which the Court may deal with the inappropriate conduct of litigation, so that a party who incurs costs in that manner has to bear them.”

Quite the Mylward v Weldon vibe. But shouldn’t we reflect on the extent to which these comments may be applicable to much of the wider planning system?

The simple fact is that there is currently no external discipline being applied in relation to the length of documents. Even the lightest of nudges by way of policy guidance and/or financial consequences in relation to for instance application fees (and appeal fees, if they ever come) and costs awards would have an immediate impact. And a word count brings the discipline of making sure that what is being said is being said clearly and simply, with irrelevant material excised.

I’d better end there. I don’t have that discipline with this blog, sorry. Enjoy the rest of this long weekend; I’ve taken up enough of your time.

Simon Ricketts, 24 August 2024

Personal views, et cetera

Extract from photo by Behram Norouzi courtesy of Unsplash