Learning Outcomes
After reading this article, you will be able to systematically assess the strengths and weaknesses of a legal claim or defence for SQE1. You will understand how to evaluate liability, evidence, causation, quantum, enforceability, and practical considerations. This will enable you to advise clients on the prospects of success, identify risks, and make informed decisions about pursuing or defending civil proceedings.
SQE1 Syllabus
For SQE1, you are required to understand how to analyse the merits of a claim or defence in civil litigation. In your revision, focus on:
- identifying and applying the legal elements of a cause of action or defence (e.g. contract, tort)
- evaluating the sufficiency and reliability of evidence
- assessing causation and quantum of loss
- considering enforceability and practical obstacles to recovery
- weighing up costs, risks, and proportionality in advising clients
Test Your Knowledge
Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.
- What are the essential components you must analyse when assessing the merits of a claim or defence?
- Why is it important to consider enforceability when advising a client on whether to pursue a claim?
- How does the burden of proof affect the analysis of a claim or defence?
- What practical factors might make a strong legal claim unviable in practice?
Introduction
Analysing the merits of a claim or defence is a core skill for SQE1 and legal practice. You must be able to identify the strengths and weaknesses of a case by examining legal, evidential, and practical factors. This enables you to advise clients on their prospects, risks, and the best course of action.
Identifying the Legal Basis
The first step is to establish the correct legal cause of action or defence. This involves checking whether the facts support a claim in contract, tort, or another area, and whether all legal elements are present.
Key Term: cause of action
The legal basis on which a claimant seeks a remedy from the court, requiring proof of specific elements.
Assessing Liability
For a claim to succeed, the claimant must prove each element of the cause of action. For a defence, the defendant must show a valid legal reason why the claim should fail.
Key Term: liability
Legal responsibility for an act or omission that gives rise to a claim.
Contract
In contract, check for a valid agreement, terms (express or implied), breach, and loss. Consider whether the breached term is a condition or warranty, as this affects available remedies.
Tort
In tort (e.g. negligence), confirm the existence of a duty of care, breach, causation, and damage.
Statutory Claims
For statutory claims, ensure all statutory requirements are met.
Defences
Identify any complete or partial defences (e.g. limitation, contributory negligence, set-off, exclusion clauses).
Evaluating Evidence
A claim or defence is only as strong as the evidence supporting it. Assess whether there is sufficient, reliable, and admissible evidence to prove or disprove each element.
Key Term: evidence
Information presented to the court to prove or disprove facts in issue.
Consider:
- documentary evidence (contracts, correspondence, records)
- witness statements (first-hand accounts)
- expert reports (where technical issues arise)
- physical evidence (objects, photographs)
Check for gaps, inconsistencies, or weaknesses in the evidence. Consider the credibility of witnesses and the risk of evidence being challenged or excluded.
Causation and Quantum
Even if liability is established, the claimant must prove that the defendant’s act or omission caused the loss claimed, and quantify that loss.
Key Term: causation
The requirement to show that the defendant’s breach caused the claimant’s loss.Key Term: quantum
The amount of damages or loss suffered by the claimant.
- Apply the "but for" test: would the loss have occurred but for the defendant’s breach?
- Consider remoteness: is the loss too remote to be recoverable?
- Assess whether the loss has been mitigated (i.e. claimant has taken reasonable steps to reduce their loss).
- Check that the quantum is supported by evidence (e.g. invoices, expert valuations).
Enforceability and Practical Considerations
A judgment is only valuable if it can be enforced. Consider whether the defendant has assets, is solvent, or is located within the jurisdiction. Assess the likelihood of recovery and any barriers (e.g. insolvency, foreign assets, competing claims).
Key Term: enforceability
The practical ability to recover a judgment or remedy from the defendant.
Other practical factors include:
- limitation periods (is the claim in time?)
- the costs of litigation versus likely recovery
- the impact on ongoing relationships
- reputational or commercial risks
Costs, Risks, and Proportionality
Advise clients on the likely costs of pursuing or defending a claim, the risk of adverse costs orders, and whether the potential benefit justifies the expense and risk.
Key Term: proportionality
The requirement that the steps taken and costs incurred are reasonable in relation to the value and complexity of the case.
Consider alternative dispute resolution (ADR) as a potentially more cost-effective and quicker route to settlement.
Worked Example 1.1
A client asks if they should sue a supplier for breach of contract after receiving defective goods. The contract is clear, but the supplier is in financial difficulty and has no visible assets.
Answer: Although the legal claim appears strong, the lack of enforceability means the client is unlikely to recover any damages. You should advise against pursuing litigation unless the supplier’s financial position improves.
Worked Example 1.2
A claimant has strong evidence of negligence against a contractor, but the only witness to the key event is unwilling to attend court.
Answer: The claim is weakened by the lack of available evidence. Without the witness, it may be difficult to prove breach or causation. Consider whether other evidence can be obtained or whether settlement is advisable.
Worked Example 1.3
A defendant is sued for £10,000. The defence is weak, but the claimant has failed to issue proceedings within the limitation period.
Answer: The defendant has a complete defence. Limitation is a procedural bar, so the merits of the initial claim are irrelevant.
Summary
When analysing the merits of a claim or defence, always:
- Identify the legal basis and ensure all elements are present.
- Evaluate the quality and sufficiency of evidence.
- Assess causation and quantum.
- Consider enforceability and practical obstacles.
- Weigh up costs, risks, and proportionality.
Key Point Checklist
This article has covered the following key knowledge points:
- The merits of a claim or defence depend on liability, evidence, causation, quantum, and enforceability.
- All elements of the cause of action or defence must be supported by reliable evidence.
- Causation and quantum must be proven with admissible evidence.
- Enforceability and practical factors may affect the real value of a claim.
- Costs, risks, and proportionality must be considered before advising to proceed.
Key Terms and Concepts
- cause of action
- liability
- evidence
- causation
- quantum
- enforceability
- proportionality
