Application preparation and case theory - Case theory develo...

Learning Outcomes

This article explains case theory development and application preparation for SQE2 advocacy tasks, including:

• Identifying client objectives and the opponent’s likely position, and formulating a clear, coherent case theory for applications and trials.
• Distinguishing between the applicable legal test and case theory, and integrating both to shape factual investigation, evidential strategy, and advocacy.
• Conducting focused legal and factual analysis, selecting and organising relevant facts, and mapping facts and evidence to each element of the legal test.
• Structuring persuasive written and oral submissions, using skeleton arguments and precise test-to-facts mapping calibrated to the burden and standard of proof.
• Applying these techniques to common applications such as summary judgment, strike out, setting aside default judgment, relief from sanctions, bail, injunctions, freezing orders, and “no case to answer” submissions.
• Anticipating weaknesses, judicial interventions, and opponent arguments, and adapting case theory, remedies, and case management proposals in response.
• Embedding ethical and professional duties in advocacy, including fair dealing with authorities, proper handling of evidence, and efficient, honest assistance to the court.

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, with a focus on the following syllabus points:

• 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.
• Integrating burden and standard of proof into submissions and tailoring persuasion to the appropriate threshold.
• Preparing and using skeleton arguments to organise the legal framework, facts, and authorities for the hearing.

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 a case theory, and why is it important to develop one for an application or trial?
2. What is the difference between a legal test and a case theory, and how are they connected?
3. In an application for summary judgment, what is the relevant legal test, and how does it inform your case theory?
4. 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. A well-prepared skeleton argument helps you marshal the test, facts, evidence, and authorities succinctly.

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.

Key Term: submission
An argument presented to the court applying law to facts, asking for a specific order or decision.

Key Term: skeleton argument
A concise written outline of the issues, legal framework, and key facts and authorities that will be relied upon at the hearing.

Key Term: burden and standard of proof
Burden refers to which party must prove an issue; standard is the level of persuasion required (e.g., balance of probabilities in civil hearings, beyond reasonable doubt in criminal trials). Persuasion must be calibrated to the applicable standard.

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. Case theory is not static: adjust it as new facts emerge, the court probes points, or procedural constraints shift. Competent advocates connect case theory to client objectives and ethical duties—never misleading the court, dealing fairly with authorities, and avoiding overstatement.

Common pitfalls when case theory is unclear include:

• Arguing facts without tying them to the legal test.
• Failing to distinguish between what must be proved and what is background narrative.
• Ignoring the burden and standard of proof when weighing whether evidence meets the threshold for the order sought.
• Overlooking procedural rules that create additional gateways (e.g., promptness in setting aside default judgment).

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? Consider a strengths–weaknesses–opportunities–threats assessment to understand where your factual case is robust and where it needs shoring up or conceding.
• Legal framework: What is the legal context for the application? What rights, obligations, or remedies are contested? Identify the procedural rule conferring the court’s power (e.g., Part 24 for summary judgment; Part 25 for interim remedies; Part 13 for setting aside default judgment) and any practice directions.

Relate facts to the applicable law, then decide which facts are genuinely in dispute and which are agreed or provable from reliable documents or witness statements. Map each “ingredient” of the legal test to propositions of fact and then to specific pieces of evidence (documents, transaction records, witness statements). This “facts-to-test” mapping keeps submissions concise and ensures you cover every required element.

Ethics and professionalism underpin analysis. You must not seek to influence or tamper with evidence, and you must draw the court’s attention to relevant authorities that materially affect the outcome even if unfavourable. If client instructions would cause you to mislead the court, you should explain the professional framework and refuse to act on those instructions.

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 and structure your skeleton argument and oral submissions around it.

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?
• Strike out (CPR 3.4): Does the statement of case disclose no reasonable grounds for bringing or defending the claim, is it an abuse of the court’s process, or is there failure to comply with a rule or order?
• Set aside default judgment (CPR 13.2–13.3): Mandatory set-aside in certain service/acknowledgment scenarios; otherwise discretionary, focusing on real prospect of success and “some other good reason,” with promptness a critical factor.
• Relief from sanctions (Denton v TH White [2014] EWCA Civ 906): Assess (1) seriousness/significance of breach, (2) reasons for breach, and (3) all the circumstances to deal with the case justly, including efficient conduct of litigation.
• 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? Consider mitigation through conditions.
• Injunction (American Cyanamid principles): Is there a serious issue to be tried, would damages be adequate, and does the balance of convenience (including preserving the status quo) favour granting the order?
• Freezing injunction (CPR 25.1(1)(f)(ii); criteria summarised in authority such as Kaza Ltd v Akcil [2019] EWCA Civ 891): Good arguable case, real risk of asset dissipation, assets within scope, and just and convenient to grant; plus full and frank disclosure and cross‑undertaking in damages.

Once identified, tailor your submissions and case theory to show (or contest) that the legal test is met. Calibrate persuasion to the relevant burden and standard of proof and be explicit about how each factual proposition meets each limb of the test.

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.
• Present a skeleton argument mapping the test to key documents (contract, invoices, demand, correspondence), and address burden/standard (civil standard).

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.

A practical structure for your skeleton argument:

• Introduction: order sought and procedural basis.
• Legal framework: the applicable rule/test and burden/standard.
• Facts: concise chronology and which facts are disputed/undisputed.
• Application: mapping each limb of the test to propositions of fact and evidence.
• Authorities: only those that materially affect the test or its application.
• Relief: draft order, costs, and any directions (e.g., time for compliance).
• Annexes: key documents and page references for the bundle.

During the hearing, be ready to adjust. The court may focus only on points needing argument. Have copies of relevant rules and witness statements to hand; flag paragraphs to locate swiftly. End your submissions by emphasising your strongest points and the precise order sought.

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 focusing on current stability (employment, family ties, verified address) to show risk is low.
• Explain previous failures (youth, misunderstanding, now distant in time) and evidence present circumstances are different.
• Propose conditions (e.g., curfew, reporting, surety) to mitigate residual risk; argue that with conditions the legal threshold is not met.
• Refer to burden and standard: the prosecution bears the burden; the court decides on risk, not certainty.

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 (loss quantifiable; contractual protections exist).
• Emphasise inconvenience or commercial harm to your client if the injunction is granted (e.g., disruption to supply chains).
• Argue that the balance of convenience and preserving the status quo are against the order; the test is not satisfied.
• If granted, propose narrow terms and undertakings, including cross‑undertaking in damages, to limit harm.

Worked Example 1.4

You act for a defendant seeking to set aside a default judgment. What must your submissions cover?

Answer:

• Identify CPR 13.2 (mandatory) and 13.3 (discretionary) grounds; confirm whether service/acknowledgment defects trigger mandatory set-aside.
• For discretion, show a real prospect of success (outline defence on merits) or some other good reason (e.g., misdelivery of claim documents to a different address).
• Address promptness explicitly: explain immediately upon discovering judgment you acted; evidence steps taken.
• Map merits to documents (contract terms, payments, correspondence) and invite directions for defence filing and case management.

Worked Example 1.5

Relief from sanctions is sought after late service of a witness statement. How do you apply Denton?

Answer:

• Step 1: Assess seriousness/significance—explain if lateness affected trial date or prejudiced the other party; narrow if minimal.
• Step 2: Give reasons—set out good reasons (e.g., unexpected illness; technical failure), supported by evidence.
• Step 3: All circumstances—emphasise prompt application, prior compliance record, and the need to decide cases on their merits, balanced with efficient conduct of litigation.
• Propose proportionate case management (e.g., brief adjournment; costs in any event) to cure prejudice.

Worked Example 1.6

You are defending a criminal trial and consider a submission of “no case to answer.” What test applies and how do you structure the application?

Answer:

• Identify the test in R v Galbraith: if the prosecution evidence, taken at its highest, could not lead a reasonable tribunal to convict, the case should not go to the jury.
• Pinpoint specific gaps (e.g., identity; essential element of offence) or weakness in the evidence.
• Map each essential element to evidence; highlight where it is absent or purely speculative.
• Emphasise the burden (on the Crown) and standard (sure beyond reasonable doubt); argue the evidence does not cross the threshold to be left to the jury.

Worked Example 1.7

An urgent freezing injunction is sought. What must your case theory and submissions address?

Answer:

• Establish a good arguable case on the principal claim (e.g., fraud/breach of fiduciary duty).
• Provide cogent evidence of a real risk of dissipation (e.g., recent transfers offshore; concealment; asset movement patterns).
• Identify assets and their location; tailor the order’s scope; explain why it is just and convenient to grant.
• Confirm full and frank disclosure and offer a cross‑undertaking in damages; address proportionality and carve‑outs for living/business expenses.

Bringing It Together: Persuasion and Ethics

Persuasive advocacy is not about volume but about clarity, structure, and trust. Courts expect advocates to:

• Adopt an efficient structure and avoid unnecessary detail.
• Acknowledge and deal with unfavourable points transparently.
• Avoid overstating evidence and ensure submissions withstand scrutiny.
• Observe etiquette and address the court correctly; do not waste the court’s time.

The relationship between persuasion and the burden/standard of proof is central. In civil applications, you need to persuade the court that the civil standard is met for the test; in criminal, remember that the prosecution must satisfy the criminal standard, while defence applications (e.g., bail) turn on risk and proportionality. Effective advocates calibrate their case theory to the applicable threshold.

Preparation and Skeleton Argument: Practical Steps

A disciplined plan enhances performance:

• Know the facts, statements of case, and witness statements; prepare a short chronology.
• Read and flag relevant rules and practice directions; have authorities ready and only cite those that materially affect the outcome.
• Draft a skeleton argument early, then refine it after re-reading the papers. Keep it concise and focused on the test-to-facts mapping.
• Know the order you seek—including draft text—plus directions and costs. Be prepared for alternative orders if the court is not with you on your primary relief.
• Consider negotiation (e.g., Part 36 offers in civil claims) if consistent with client objectives and risk analysis; sometimes the best outcome is compromise rather than “winning.”

Risk Management and Adaptability

Applications often arise under time pressure and changing circumstances. Manage risks by:

• Identifying critical dates and procedural gateways (e.g., application windows; promptness).
• Building contingency plans (e.g., alternative relief; case management proposals to cure prejudice).
• Monitoring ethical risks: never mislead the court, resist pressure to act improperly, and ensure compliance with court orders and procedural rules.

Revision Tip

When preparing for SQE2, practise mapping each application scenario:

1. Identify the correct legal test
2. Clarify your case theory
3. 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 and adapting it as proceedings unfold.
• Relating facts to law and identifying disputed versus undisputed issues; mapping facts and evidence to each limb of the legal test.
• Stating the legal test explicitly and calibrating persuasion to burden and standard of proof.
• Using skeleton arguments to organise issues, legal tests, facts, and authorities for efficient hearings.
• Application preparation and structured submissions for summary judgment, strike out, set aside default judgment, relief from sanctions, bail, injunctions, and freezing orders.
• Anticipating counter‑arguments, building proportionate alternatives, and proposing practical case management solutions.
• Observing ethics and duty to the court—fair dealing with authorities, not misleading, and efficient use of court time.

Key Terms and Concepts

• case theory
• legal test
• submission
• skeleton argument
• burden and standard of proof