File review and issue identification - Evidential gaps and e...

Learning Outcomes

This article sets out systematic file review and issue identification for evidential gaps and evidence appraisal, including:

• Methodically reviewing a client file to pinpoint evidential gaps, weaknesses, and risks
• Appraising the quality, admissibility, reliability, and relevance of available evidence
• Applying critical reasoning to advise practical steps that strengthen the case
• Mapping facts to legal elements and producing a concise chronology and proof checklist
• Checking compliance with procedural requirements for witness and expert evidence (CPR Part 32, PD 32, Part 22; CPR Part 35/CrimPR Part 19)
• Identifying and managing hearsay, authenticity, and continuity issues, particularly for digital/CCTV
• Drafting clear, structured file notes that set out risks, consequences, and an action plan
• Prioritising remedial actions, allocating responsibilities, and setting dates to control risk
• Spotting practical evidential issues central to the SQE2 assessment and exam scenarios

SQE2 Syllabus

For SQE2, you are required to understand how to systematically review a file for evidential sufficiency and to evaluate the probative value of evidence presented, with a focus on the following syllabus points:

• identifying evidential gaps that could affect case outcomes
• assessing whether evidence meets legal and practical standards of admissibility, reliability, and relevance
• advising on what further evidence or information is required to address weaknesses
• considering practical steps or applications to remedy deficiencies
• building a chronology and a proof checklist linking each ingredient of a cause of action/offence to supporting facts and evidence
• checking witness statements comply with procedural rules (e.g. CPR Part 32 and PD 32 formatting; statement of truth under CPR Part 22)
• ensuring expert evidence is compliant (e.g. CPR Part 35 in civil; CrimPR Part 19 in criminal) and permission obtained where required
• identifying and managing hearsay (Civil Evidence Act 1995; Criminal Justice Act 2003), including any notice and justification
• verifying authenticity and continuity of exhibits (chain of custody), especially for digital/CCTV evidence
• drafting concise advice to the supervising solicitor that explains weaknesses, consequences, options, and time-critical next steps

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.

1. What is meant by an "evidential gap" in a client file?
2. Which of the following is most likely to be inadmissible in court? a) A signed witness statement
   b) Hearsay evidence with no permitted exception
   c) A contemporaneous business record
3. How should you record evidential weaknesses when drafting advice to your supervising solicitor?
4. Identify two appropriate steps if you identify missing key witness evidence before trial.

Introduction

File review and issue identification is at the core of competent legal analysis for the SQE2. You must be able to examine a file, determine whether there is sufficient admissible evidence to prove or defend a claim, and spot gaps that could impact prospects of success. You are also required to evaluate the strengths and weaknesses of the evidence and suggest practical next steps.

A thorough review blends legal analysis and practical case management. Start by clarifying your client’s objectives, then interrogate the file to see whether each legal element is supported by admissible, persuasive evidence. Use structured tools (such as a chronology and proof checklist) to isolate what is known, what is disputed, and what is missing. Build an action plan with target dates to remedy shortcomings.

The Purpose of File Review

A structured file review allows you to check the sufficiency and quality of the evidence supporting each element of a client’s case. Review is not a passive reading but an active, critical process. For each factual or legal issue, you must ask: is there evidence? Is it admissible, credible, and relevant? Are any essential pieces missing?

Key Term: file review
A systematic assessment of all documents, facts, and evidence on a client file to determine completeness and identify action points or weaknesses.

A practical way to begin is to compile a short chronology of key events with dates, then map each pleaded or anticipated issue against the evidence present. Where gaps appear, list them explicitly and generate options to fill them (for example, targeted witness statements, expert instructions, disclosure requests). This approach prevents crisis management late in the case and supports risk control.

Identifying Evidential Gaps

An evidential gap arises where no evidence—or only inadmissible or unreliable evidence—is available to prove a necessary aspect of the case. Failing to spot such gaps poses a real risk to your client's position, especially if unaddressed before trial.

Typical gaps include:

• missing evidence for a core ingredient (e.g. breach, causation, or loss)
• witness statements that lack a statement of truth or are unsigned (risking admissibility and weight)
• expert evidence obtained without court permission or non-compliant with CPR Part 35/CrimPR Part 19
• hearsay material with no permitted exception or no notice where required
• documentary exhibits lacking provenance or continuity (particularly for digital evidence)
• inconsistent accounts, or evidence that is internally contradictory or counter-intuitive without corroboration

A useful technique is to list “unknowns”: write down what you do not yet know but need to establish. This avoids fixation on known facts and helps direct purposeful enquiries.

Key Term: evidential gap
A missing or unsatisfactory piece of evidence required to establish or refute a key factual or legal issue in the case.

Evidence Appraisal

Simply having evidence is insufficient—it must be assessed for its quality, admissibility, and ability to persuade the tribunal. This means scrutinising witness statements for consistency, testing the authenticity of documents, and evaluating whether expert reports meet procedural requirements.

Practical appraisal asks:

• Is the evidence consistent with common sense and established facts?
• Is it internally consistent, or does it contradict prior statements?
• Is there any apparent bias, motive, or interest affecting credibility?
• Does the item of proof actually support the relevant ingredient you need to establish?

Key Term: evidence appraisal
The analytical process of assessing the quality, admissibility, relevance, and sufficiency of evidence to prove or disprove an issue.

Admissibility, Reliability, and Relevance

Every piece of evidence must be carefully checked for legal admissibility (can it be used at all?), reliability (is it likely to be believed?), and relevance (does it actually relate to a key issue?).

For civil cases, hearsay is admissible subject to the Civil Evidence Act 1995, but notice and evaluation of weight will matter. In criminal cases, hearsay is governed by the Criminal Justice Act 2003 and the Criminal Procedure Rules; you must ensure a permitted gateway and compliance with the rules. Witness statements must comply with CPR Part 32 and PD 32 (including layout and statement of truth under CPR Part 22), and expert reports must comply with CPR Part 35 (or CrimPR Part 19) and any court directions. Real evidence (documents, CCTV, digital files) must be authenticated and continuity shown to safeguard against challenge.

Key Term: admissibility
The legal principle governing whether evidence can be received and considered by a court or tribunal.

Key Term: reliability
The likelihood that a piece of evidence is accurate and will be accepted as truthful or trustworthy.

Key Term: relevance
The connection between the evidence and the fact in issue—if a fact does not make a material issue more or less probable, it is not relevant.

Worked Example 1.1

Scenario: You are reviewing a personal injury case file. The main witness's statement is unsigned, and no medical evidence of injury is present. What evidential gaps exist, and what should you do?

Answer:
There are obvious gaps: (1) The witness statement is unsigned, making it inadmissible. (2) There is no medical evidence, so the injury is unproven. You should flag up both issues and recommend urgent steps to (a) obtain a statement in proper form and (b) commission a medical report. In practice: request the witness to sign and date a compliant statement with a statement of truth (CPR Part 22; PD 32), and instruct an appropriate medical expert under CPR Part 35 (seeking permission if needed), obtaining medical records and ensuring the expert’s report meets procedural requirements. Build a short chronology and proof checklist to confirm that breach, causation, and quantum are each supported, and diarise target dates for completion.

Recognising Weaknesses and Taking Action

A clear, concise note or report should be prepared for your supervising solicitor, highlighting each evidential shortfall. You should recommend the most practical remedial steps, such as contacting witnesses promptly, arranging expert reports, or requesting missing documents via disclosure procedures.

When proposing remedial steps:

• set out the consequence of doing nothing (e.g. inability to prove a core element, risk of adverse costs)
• prioritise actions according to urgency and impact on the case theory
• assign responsibility (you, client, counsel, expert) and target dates for each step
• anticipate contingencies (e.g. a witness may be unavailable) and propose backup options

Exam Warning

Examiners may require you to comment not only on what is present in the file, but also—critically—on what is missing. Marks are often lost for failing to recommend practical actions to fix gaps.

Practical Tools

Effective file review is supported by simple, robust tools.

• Chronology: list key dates and events; it helps reveal sequencing gaps and supports case presentation.
• Proof checklist: for each legal ingredient (e.g. existence of contract; breach; causation; loss), list the propositions of fact and the item(s) of evidence that prove them. This ensures targeted evidence collection.
• Statement analysis: annotate witness statements to number each fact you need to prove, and check for internal consistency or contradictions with other statements or documents. This will help you anticipate cross-examination risks and weight.

Checklists

Develop your own checklist or use your firm’s precedent to ensure you have considered:

• Parties' statements and key witness evidence
• Documentary proof (contracts, correspondence, contemporaneous records)
• Expert reports where needed
• Admissions and agreed facts
• Gaps in sequence or inconsistencies
• Hearsay and whether any notice or exception applies
• Continuity and authenticity of exhibits (especially electronic or CCTV)
• Compliance with procedural directions and rules (e.g. CPR/CrimPR timetables)

Use checklists as prompts rather than scripts; remain alert to facts that do not fit expected patterns and be ready to adjust your inquiries. Topic lists (rather than rigid question lists) help you retain control while listening actively and following up on emerging issues.

File Notes and Reports

When preparing reports or notes:

• Record the absence or weakness of evidence clearly and concisely
• Note potential consequences if gaps are unaddressed
• Recommend next steps (e.g. further enquiries, seeking adjournments, making applications)
• Use precise, modern language; avoid jargon and vague terms such as “soon” or “substantial”
• Prefer active voice where appropriate and specify dates and responsibilities
• Cross-reference to rules or orders relevant to the action proposed (e.g. “Obtain permission under CPR 35 for orthopaedic expert—application by [date]”)

Worked Example 1.2

Scenario: On file review for a contract dispute, you discover the only contract is unsigned and all correspondence is oral. How do you present this to your supervisor?

Answer:
Note that there is insufficient documentary evidence of the contract terms—the unsigned document may lack probative value and oral evidence is vulnerable to dispute. Advise that written witness statements and/or admissions be obtained, and the opposing party formally requested to clarify their position. Propose taking statements from key participants to cover formation (offer/acceptance/consideration), agreed terms, performance, breach, and loss. Identify contemporaneous records (emails, texts, diaries, invoices) and request disclosure. Prepare a proof checklist mapping each contractual element to proposed evidence and include timescales for securing statements and making any applications.

Worked Example 1.3

Scenario: In an employment dismissal case, you only have the employer's disciplinary policy and a brief internal memo. There is no evidence of the actual disciplinary process.

Answer:
The evidential gap is absence of documented process showing the steps taken. Advise to locate or request formal hearing notes, witness statements from those involved, and written outcome letters. Seek copies of the invite letter, any investigation reports, witness notes, minutes of hearings, decision letters, and appeal materials. Take statements from HR and managers to evidence following the policy and the reason for dismissal. Prepare a timeline of key dates (investigation, hearing, decision, appeal) and identify any inconsistencies or omissions that affect fairness.

Worked Example 1.4

Scenario: In a criminal damage case, the file contains CCTV footage on a USB stick and a single officer’s statement saying “I downloaded the footage.” No exhibit labels, no continuity statements, and the camera owner is unknown.

Answer:
Gaps include authenticity and continuity of the exhibit (no exhibit reference, no chain-of-custody, no evidence of camera provenance or time stamp accuracy). Recommend obtaining continuity statements from each person who handled the media, an exhibit label and log, and a statement from the premises owner or system administrator to authenticate the footage and explain capture, storage, and time settings. Consider metadata extraction and stills. Check gateways for any hearsay statements and ensure compliance with CrimPR for service and any notices. Without these steps, admissibility and weight are at risk.

Worked Example 1.5

Scenario: In a civil professional negligence claim, the only expert report is a draft email from a consultant opining on breach. It is not addressed to the court, lacks a statement of truth/independence, and does not set out instructions or the expert’s qualifications.

Answer:
The report is non-compliant and risks exclusion or low weight. Propose obtaining court permission for expert evidence if not already granted, then instruct an appropriately qualified expert to produce a CPR Part 35-compliant report (addressed to the court, with declarations of independence and understanding of duties, CV, instructions, material relied upon, and a statement of truth). Set deadlines to avoid listing risks and recommend considering a single joint expert if appropriate to the track and issues.

Key Point Checklist

This article has covered the following key knowledge points:

• File review means actively analysing all evidence and documents for sufficiency
• Evidential gaps are missing or legally insufficient evidence on a key issue
• Appraisal is needed for admissibility, reliability, and relevance of evidence
• Record gaps and weaknesses clearly; always advise on practical steps to remedy
• Use structured checklists to ensure no gaps go unnoticed
• Build a chronology and proof checklist linking legal ingredients to facts and evidence
• Verify procedural compliance (CPR/CrimPR) for witness and expert evidence
• Manage hearsay, continuity, and authenticity—especially for digital evidence
• Draft precise, practical advice notes with responsibilities, deadlines, and contingencies

Key Terms and Concepts

• file review
• evidential gap
• evidence appraisal
• admissibility
• reliability
• relevance