Speaking Note – Boon or Pain?

Traditionally, a speaking note is prepared by counsel to set out the key arguments he intends to make during oral arguments. It is usually short and concise and almost in a bullet point form. The intention is to assist the Court in wading through complex submissions and/or documents.

More often than not, speaking notes are filed by external counsels as the oral arguments which external counsels intend to take may be different from the approach taken in the written submissions. Even then, the speaking note is traditionally between 5 to 8 pages long (or shorter).

Despite the original roots of a speaking note, in recent times, parties have appeared to abuse the concept of speaking note to introduce full length additional written submissions. This is what happened in the case of KNM Group Berhad and KNM Process Systems Sdn Bhd v Hitachi Zosen Corporation & 10 Ors, where the Applicants filed a speaking note of 81 pages in addition to written submissions of 300 pages, whilst the opposing Respondents filed a speaking note of 19 pages to go with their written submissions of 89 pages.

Such lengthy speaking notes would completely deprive the court of its utility as it no longer summarises the key arguments but instead sets out extensive arguments. In a somewhat chastising judgment, the learned High Court Judge made his observations as follows:

“[11] A speaking note is to assist the Court and intended to be a short summary of what Counsel intends to say in oral argument. It should be no more than a few pages long.

[12] Its purpose is not, through labelling, to provide an excuse to file further and lengthy written submissions and to introduce new arguments. A speaking note is commonly filed at the eleventh hour often breaching the schedule for filing submissions set by Court. And also depriving the other side of a proper opportunity to consider it.

[13] It is more often than not, an abuse. As an illustration, in his speech at the Peter Taylor memorial lecture “Complexity and Obscurity in the Law and how we might mitigate them”, Lord Justice Irwin observed some distaste, “there is a special ring in hell for the advocate who stands up at 10.31 with the words “My lady, My Lords, I have prepared a Speaking Note which is on the bench.”

[14] The practice should be closely watched.”

Given the evolution on the usage of speaking notes, should we dispense with it all together? That is certainly something to consider if the concept of a speaking note has outlasted its original purpose.

See grounds of judgment here:

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