Analysis of merits of claim or defence - Evaluating legal an...

Learning Outcomes

This article outlines how to evaluate the legal and factual merits of civil claims and defences for SQE1 FLK1 preparation, including:

• identifying appropriate causes of action in contract, tort and related areas, and matching pleaded facts to each necessary legal element;
• assessing sufficiency, admissibility and strategic value of documentary, witness and expert evidence, and relating it to the burden and standard of proof;
• spotting preliminary issues such as limitation, jurisdiction, governing law, correct parties and enforcement viability that may be dispositive of the claim or defence;
• anticipating, categorising and evaluating common defences (including contributory negligence, exclusion clauses, causation challenges and jurisdictional objections) and their impact on overall prospects;
• analysing procedural mechanisms such as summary judgment, default judgment, disclosure, privilege and use of hearsay, and integrating them into merits assessment;
• weighing causation, remoteness, mitigation and quantum issues when evaluating recoverable loss and realistic remedies;
• synthesising strengths, weaknesses, risks, costs consequences (especially ADR engagement and Part 36 offers) into clear, exam-standard advice and multiple-choice question strategies.

SQE1 Syllabus

For SQE1, you are required to understand how to analyse the merits of a claim or defence in civil litigation, with a focus on the following syllabus points:

• Identifying and applying legal causes of action in contract and tort.
• Evaluating the sufficiency and admissibility of factual evidence.
• Understanding the burden and standard of proof in civil proceedings.
• Recognising and assessing common legal defences.
• Advising on the strengths and weaknesses of claims and defences in practical scenarios.
• Considering limitation, jurisdiction, governing law, parties, and enforcement viability at the pre-action stage.
• Understanding disclosure (standard disclosure, privilege, inspection) and the use of experts and hearsay.
• Identifying procedural filters (e.g., summary judgment) and costs consequences (e.g., ADR engagement and Part 36 offers).

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 the standard of proof in civil litigation, and who bears the burden of proof?
2. How would you determine if a client has a viable cause of action in negligence?
3. What factors should you consider when evaluating whether a defence is likely to succeed?
4. In what circumstances might a court find that a claim is weak, even if the facts are largely undisputed?

Introduction

Analysing the merits of a claim or defence is a core skill in civil litigation. For SQE1, you must be able to identify the legal and factual strengths and weaknesses of both sides in a dispute. This involves applying legal principles to the facts, assessing the available evidence, and considering procedural and practical factors that may affect the outcome. Early case analysis also requires attention to limitation, jurisdiction and governing law, the identification of correct parties, funding, and costs risk. Merits are not only legal; the civil procedure framework can improve or impair prospects—for example, by pre-action protocols encouraging ADR, disclosure obligations shaping the evidential picture, or summary judgment offering early disposal of weak claims/defences.

Key Term: pre-action protocol
Guidance embedded in the Civil Procedure Rules (and a general Practice Direction) setting out steps parties should take before issuing proceedings to exchange information, consider ADR, and narrow issues; non-compliance can attract costs sanctions.

Identifying the Legal Basis

The first step in evaluating a claim or defence is to establish the relevant legal cause of action or defence. This requires matching the facts to the legal elements required for the claim and confirming that the correct parties have been identified (individuals, companies, partnerships, or sole traders).

Key Term: cause of action
The legal basis on which a claimant seeks a remedy from the court, such as breach of contract or negligence.

Common causes of action include:

• Breach of contract: Confirm a valid contract (offer, acceptance, consideration, intention, capacity), identify applicable express/implied terms, and specify breach. Consider remedies (damages, specific performance) and obligations to mitigate loss. If terms limiting liability exist, assess enforceability under the Unfair Contract Terms Act 1977 (business-to-business) or Consumer Rights Act 2015 (consumer contracts).
• Negligence: Duty of care, breach of duty, causation, and damage. Duty may be established by general principles or statute (e.g., Occupiers’ Liability). Consider contributory negligence and intervening acts.
• Other torts: Such as trespass, nuisance, or misrepresentation (also engaging contractual remedies where misrepresentation induced a contract).

Check preliminary issues:

• Governing law and jurisdiction (e.g., choice-of-law/jurisdiction clauses).
• Correct legal entity to sue (company vs. director; partnership vs. partners; sole traders).
• Limitation periods, including special regimes for personal injury and latent damage.
• Enforcement viability: defendant’s assets and solvency.

Key Term: limitation defence
A defence that the claim is time-barred because it was not brought within the period allowed by law.

Assessing the Evidence

Once the legal basis is identified, the next step is to evaluate the evidence supporting each element of the claim or defence. Evidence analysis includes relevance, admissibility, and weight, as well as compliance with disclosure duties and privilege.

Key Term: evidence
Information presented to the court to prove or disprove facts in issue, including documents, witness statements, and expert reports.

Consider:

• Is the evidence relevant and admissible? Distinguish between factual evidence, opinion evidence, and hearsay, noting when each may be used.
• Are there contemporaneous documents supporting the facts?
• Are witnesses credible and consistent?
• Is expert evidence required for technical issues? Permission may be needed, and a single joint expert may be appropriate to save costs.
• Have standard disclosure obligations been met? Identify adverse documents and privileged material correctly.

Key Term: hearsay
A statement made out of court, repeated in court to prove the truth of the matter stated; admissible in civil proceedings subject to notice and weight being assessed by the court.

Key Term: privilege
A right to withhold inspection of disclosed documents (e.g., legal advice privilege, litigation privilege, without prejudice privilege), even though their existence may be listed.

Key Term: standard disclosure
Under CPR 31.6, disclosure of documents relied on, which adversely affect one’s own case, adversely affect another party’s case, or support another party’s case, together with any disclosure required by Practice Directions.

Key Term: burden of proof
The obligation on a party to prove the facts necessary to establish their case.

Key Term: standard of proof
The level of certainty required to prove a fact in court. In civil cases, this is the balance of probabilities.

The claimant usually bears the burden of proof and must prove their case on the balance of probabilities (i.e., more likely than not). Defendants bear burdens for any standalone allegations they advance (e.g., contributory negligence, counterclaim).

Worked Example 1.1

A client alleges that a supplier delivered defective goods. The contract required delivery by 1 June, but the goods arrived on 5 June and were faulty. The supplier claims the delay was due to a transport strike and that the goods met the agreed specification. How would you analyse the merits of the claim and defence?

Answer:
Identify the cause of action (breach of contract). Assess whether late delivery and defective goods amount to breaches. Review the contract for force majeure or exclusion clauses. Examine delivery records and product specifications. Consider evidence of the strike and whether it excuses late delivery. Evaluate if the goods were in fact defective and whether the supplier's defence is supported by evidence.

Key Term: summary judgment
An application under CPR 24 allowing early disposal of a claim or defence where there is no real prospect of success and no other compelling reason for a trial.

If evidence clearly disproves a core element, assess whether summary judgment could bring a swift resolution, saving costs.

Analysing Factual and Legal Issues

Break down the claim or defence into its legal and factual components. For each element, ask:

• What facts must be proved?
• What evidence is available?
• Are there gaps or inconsistencies?
• Are there legal uncertainties or unsettled points?
• Do procedural filters apply (e.g., summary judgment against a plainly untenable defence)?
• Are limitation, jurisdiction, or party identification issues potentially dispositive?

Add temporal and procedural lenses:

• Limitation: The general rule is six years for contract and tort claims; three years for personal injury from the date of accident or date of knowledge; latent damage rules may extend time subject to a 15-year long-stop. Fraud or deliberate concealment may postpone start dates.
• Jurisdiction and governing law: Honour jurisdiction clauses where present. Absent an agreement, ensure the forum and applicable law are properly determined, and address permission to serve out if defendants are abroad.
• Pre-action conduct: Demonstrate compliance with protocols; offer ADR where appropriate. Non-compliance may lead to costs penalties even where liability is proved.
• Parties: Ensure the correct legal entity is sued and consider vicarious liability where appropriate.

Worked Example 1.2

A claimant relies on an email summary written by a colleague stating, “The machine jammed due to a bent impeller,” to prove defect in a product liability claim. The colleague cannot attend trial. Can the email be used? How does this affect merits?

Answer:
The email is hearsay. In civil proceedings hearsay can be admissible, but notice should be given if the author will not be called. The court will assess weight, considering timing, motive to misrepresent, and whether the statement is contemporaneous. If the email is the only proof of defect, the merits are weakened; corroborative technical documents or expert opinion would strengthen the case.

Worked Example 1.3

A defendant’s defence to a debt claim says only “the goods were poor quality” without details. The contract price was paid late and no contemporaneous complaints were made. Should the claimant apply for summary judgment?

Answer:
Likely yes. A bare assertion without pleaded particulars and supporting evidence suggests no real prospect of success. If no other compelling reason for trial exists (e.g., complex expert issues), CPR 24 may allow early judgment, strengthening the claimant’s overall merits and reducing costs exposure.

Anticipating and Evaluating Defences

A strong claim can be undermined by a valid defence. Common defences include:

• Limitation: Has the claim been brought within the statutory time limit? Consider date of knowledge rules and possible discretionary extension for personal injury.
• Contributory negligence: Did the claimant contribute to their own loss, reducing damages?
• Exclusion/limitation clauses: Does the contract limit or exclude liability? Test enforceability (UCTA/CRA).
• Causation: Is there a break in the chain of causation?
• Set-off and counterclaim: Has the defendant pleaded sums due in their favour or separate losses?
• Estoppel/accord and satisfaction: Has the claimant agreed to accept a different performance or waived rights?
• Jurisdictional challenge: Has the defendant promptly disputed the court’s jurisdiction under CPR 11?
• Illegality/consent: Are there public policy or volenti defences?

Key Term: contributory negligence
Where the claimant's own negligence contributed to their loss, reducing any damages awarded.

When assessing defences, ensure they are properly pleaded with factual backbone and evidence. Bare denials carry little weight and may invite summary judgment.

Worked Example 1.4

A claimant sues for personal injury three years and two months after an accident. The defendant pleads limitation. What is the likely outcome?

Answer:
The standard limitation period for personal injury is three years from the date of the accident or knowledge of the injury. If the claim is issued after this period, the defendant can raise a limitation defence. Unless the court exercises its discretion to extend time (rare and fact-sensitive), the claim will be struck out as time-barred.

Note the court’s discretionary power to disapply the three-year period in personal injury if it is equitable to do so, weighing prejudice and reasons for delay; merits analysis should realistically appraise prospects under that discretion.

Worked Example 1.5

A supplier relies on a broad exclusion clause to deny liability for defective components. The buyer is a consumer. How does this affect merits?

Answer:
In consumer contracts, terms excluding or limiting liability for defective goods are likely unenforceable under the Consumer Rights Act 2015. Even in business-to-business settings, UCTA may render unreasonable exclusion clauses ineffective. The buyer’s merits strengthen if statutory controls apply and the clause fails the fairness/reasonableness tests.

Causation and Remoteness

For many claims, especially in tort, it is essential to prove that the defendant's breach caused the claimant's loss and that the loss is not too remote.

Key Term: causation
The requirement to show that the defendant's breach directly caused the claimant's loss.

Key Term: remoteness
The principle that only losses reasonably foreseeable at the time of the breach are recoverable.

Ask:

• Would the loss have occurred "but for" the defendant's breach?
• Is there any intervening event breaking the chain of causation?
• Was the kind of loss a reasonably foreseeable consequence?
• In contract, was the loss within the parties’ contemplation (ordinary course of things or special circumstances known to both at formation)?

Consider quantification and mitigation—claimants must take reasonable steps to reduce losses, and avoid claiming avoidable losses.

Worked Example 1.6

A business claims lost profits after a supplier failed to deliver machinery on time. The supplier argues that the loss was due to a downturn in the market, not the delay. How should causation be analysed?

Answer:
Apply the "but for" test: would the business have suffered the loss if the machinery had been delivered on time? If the loss was due to market conditions, not the delay, causation is not established. The claim may fail unless the claimant can prove the loss was caused by the breach.

Worked Example 1.7

A retailer seeks substantial consequential losses after late delivery, citing a known seasonal event requiring time-critical stock. The supplier says such losses are too remote. How do you assess this?

Answer:
In contract, assess contemplation at formation. If the retailer communicated the time-critical, seasonal requirement, losses flowing from late delivery are more likely recoverable. If the supplier had no knowledge of special circumstances, recoverable losses may be limited to those arising in the ordinary course of business. Evidence of pre-contract communications will be key to merits.

Weighing the Merits: Strengths and Weaknesses

When advising a client, summarise:

• Which elements of the claim or defence are strong, and why?
• Where are the weaknesses or evidential gaps?
• Are there legal uncertainties or risks?
• Do procedural opportunities or hazards exist (e.g., summary judgment potential; ADR engagement; disclosure burdens; expert evidence costs)?
• What is the likely outcome if the matter proceeds to trial?
• What are the realistic costs risks (including Part 36 consequences and protocol sanctions)?

Factor in:

• Compliance with pre-action protocols and ADR attempts (the court may penalise unreasonable refusal to engage).
• Possibility of using interim applications (e.g., interim payments where liability is clear; injunctions to preserve assets; security for costs if recovery is at risk).
• Part 36 offers as strategic levers and their costs consequences if beaten or not beaten.

Exam Warning

In SQE1, questions may present scenarios where the facts appear strong, but a key legal element is missing or a defence is likely to succeed. Always check that all elements of the claim are satisfied and that no complete defence applies.

Practical Application: Advising Clients

When advising, be clear and realistic. Explain:

• The legal basis for the claim or defence.
• The evidence required and any weaknesses.
• The risks of litigation, including costs and possible adverse outcomes.
• The potential for settlement or alternative dispute resolution.
• Limitation and the option to issue protectively (with service within four months) if time is tight.
• Jurisdiction and governing law issues if there is a foreign element.
• Disclosure obligations and privilege; the likely need for expert evidence.
• Early resolution possibilities (summary judgment; interim payments).
• Enforcement prospects if judgment is obtained.

Key Term: default judgment
Judgment entered under CPR 12 where a defendant fails to acknowledge service or file a defence in time; may be set aside on mandatory or discretionary grounds.

Key Term: Part 36 offer
A formal settlement offer under CPR 36 with specific formality and significant costs consequences if not accepted and later beaten or not beaten at trial.

Revision Tip

When analysing a scenario, use a checklist: legal basis, evidence, burden and standard of proof, possible defences, causation, and remoteness. This will help ensure a thorough and structured answer in SQE1 questions. Add pre-action compliance, limitation, jurisdiction/parties, disclosure/privilege, and procedural/costs levers (summary judgment, Part 36) to round out merits analysis.

Key Point Checklist

This article has covered the following key knowledge points:

• Analysing the merits of a claim or defence requires identifying the legal cause of action and matching the facts to its elements.
• The burden of proof is usually on the claimant, with the standard being the balance of probabilities.
• Evaluate the sufficiency, relevance, and admissibility of evidence for each element; understand hearsay, opinion evidence, and the role of experts.
• Understand disclosure and privilege; disclose adverse documents and properly withhold privileged material from inspection.
• Anticipate and assess common defences, such as limitation, contributory negligence, enforceability of exclusion clauses, and jurisdictional challenge.
• Prove causation and remoteness to establish liability and recoverable loss; consider mitigation and intervening events.
• Identify procedural opportunities and risks: summary judgment potential, interim relief, protocol compliance, ADR engagement, Part 36 costs consequences.
• Summarise strengths, weaknesses, and risks when advising clients or answering SQE1 questions, including limitation and enforcement viability.

Key Terms and Concepts

• cause of action
• evidence
• burden of proof
• standard of proof
• limitation defence
• contributory negligence
• causation
• remoteness
• pre-action protocol
• hearsay
• privilege
• standard disclosure
• summary judgment
• default judgment
• Part 36 offer