Learning Outcomes
After reading this article, you will know how to develop a focused case theory for an application, analyse legal and factual issues, and identify the applicable legal test. You will be able to break down complex problems, select relevant facts, and construct submissions structured for SQE2-level assessment. This will help you frame, support, and challenge case theories effectively in all types of advocacy tasks.
SQE2 Syllabus
For SQE2, you are required to understand the development and structure of case theory when preparing applications, including key elements of legal tests. Focus your revision on:
- Legal and factual analysis of a problem to determine client objectives and the opponent's likely position.
- Structuring arguments and submissions based on the relevant legal test for the type of application (e.g., summary judgment, injunction, bail).
- Construction of a coherent, evidence-based case theory, anticipating strengths and weaknesses.
- Application of rules and tests to support or challenge factual allegations and legal arguments.
- Presenting persuasive, ethical, and well-structured advocacy in written and oral applications.
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 is a case theory, and why is it important to develop one for an application or trial?
- What is the difference between a legal test and a case theory, and how are they connected?
- In an application for summary judgment, what is the relevant legal test, and how does it inform your case theory?
- Give one example of how you would structure your application submissions based on the legal test and case facts.
Introduction
When preparing an application, a key skill for SQE2 is to develop a clear, persuasive case theory linked to the relevant legal test. This enables you to present your client’s position confidently and handle challenges posed by the opposing party. Application preparation is not just about knowing the law—it requires targeted factual analysis, identification of the correct legal framework, and the ability to weave these elements into a compelling argument.
Key Term: case theory
A coherent explanation of the facts and law that supports your client's application or defence, providing a structure for evidence and argument.Key Term: legal test
The criteria established by law which must be satisfied for a judge or tribunal to decide in your client’s favour on a particular application.
The Importance of Developing Case Theory
A case theory serves as the blueprint for your entire application. It shapes the facts you highlight, frames the issues to be decided, and supports your chosen legal test. Without a clear case theory, your submissions risk being unfocused, missing critical legal and factual points, or failing to address weaknesses before the opposition exploits them.
Analysing the Legal and Factual Issues
The process starts with analysis:
- Factual inquiry: What happened according to your client? What supporting evidence is there? Are there gaps, contradictions, or disputed elements?
- Legal framework: What is the legal context for the application? What rights, obligations, or remedies are contested?
You must relate facts to the applicable law, then decide which facts are genuinely in dispute and which are agreed or can be shown with strong evidence.
Identifying and Applying the Legal Test
Every application type comes with a specific legal test that will determine your client’s success. You should clearly identify this at the outset.
Example Legal Tests
- Summary judgment (CPR 24.2): Does the opponent have a real prospect of success or is there no other compelling reason for a trial?
- Bail (Bail Act 1976): Are there substantial grounds to believe the defendant would fail to surrender, commit an offence, or interfere with justice if released?
- Injunction (American Cyanamid principles): Is there a serious issue to be tried, would damages be adequate, and does the balance of convenience favour granting the order?
Once identified, tailor your submissions and case theory to show (or contest) that the legal test is met.
Key Term: submission
An argument presented to the court applying law to facts, asking for a specific order or decision.
Worked Example 1.1
You are acting for a claimant seeking summary judgment in a debt claim. What process should you use to prepare your application and submissions?
Answer:
- Review the facts and evidence supporting the debt claim.
- State the legal test: the defendant must show a "real prospect of successfully defending" the claim (CPR 24.2).
- Structure your case theory: argue the facts show clear non-payment, that evidence supports each ingredient of the debt, and that the defence (if any) either lacks credible evidence or is not legally sustainable.
- Anticipate any weaknesses and prepare to explain why these do not meet the summary judgment threshold.
Constructing Your Argument: Linking Legal Test and Case Theory
Your application should closely connect the facts to the test. Begin by stating the legal issue and the test that applies. Next, construct your case theory, identifying which facts best satisfy that test. Prepare your submission by:
- Distinguishing between undisputed and disputed facts.
- Summarising evidence supporting each ingredient of the legal test.
- Pre-emptively addressing weak points or foreseeable challenges.
- Making clear, short submissions that apply the law to those facts.
Worked Example 1.2
In a bail application, the prosecution argues the defendant is likely to abscond due to previous failures to appear. How would you structure your response?
Answer:
- Identify the relevant legal test: substantial grounds to believe the defendant will fail to surrender.
- Present a case theory that focuses on recent changes (steady employment, family ties) to show risk is low.
- Explain previous failures (youth, mistake, now distant in time) and show how present circumstances are different.
- Argue that suitable bail conditions can further mitigate risk so the legal test is not met.
Exam Warning
Always state the legal test explicitly before applying the facts. Submissions lacking a clear reference to the correct test rarely succeed, and may lose marks in SQE2 assessments.
Worked Example 1.3
You are opposing an interim injunction on behalf of a business client. How should you structure your submissions?
Answer:
- State the legal test: applicant must show a serious issue to be tried, damages inadequate, and balance of convenience favours the order.
- Set out a case theory that damages would be adequate (e.g., loss can be compensated by money).
- Emphasise inconvenience or commercial harm to your client if the injunction is granted.
- Argue that the balance of convenience is against the order and the test is not satisfied.
Revision Tip
When preparing for SQE2, practise mapping each application scenario:
- Identify the correct legal test
- Clarify your case theory
- Link facts and evidence to each ingredient of the legal test.
Key Point Checklist
This article has covered the following key knowledge points:
- Understanding “case theory” as the guiding structure for application advocacy.
- Importance of relating facts to law and identifying disputed issues.
- Selecting and explicitly stating the legal test for the application.
- Using facts and evidence to support or challenge each element of the legal test.
- Structuring submissions and anticipating counter-arguments.
- Application preparation for summary judgment, bail, and injunctions.
- Pre-empting examiner marks deductions by explicitly referencing the legal test.
Key Terms and Concepts
- case theory
- legal test
- submission