File review and issue identification - Identifying legal iss...

Learning Outcomes

After studying this article, you will be able to conduct a methodical file review, identify material legal issues from factual records, determine relevant causes of action, and spot available substantive and procedural defences in civil and criminal matters. You will also understand the process of structuring your analysis for concise reporting, as required for the SQE2 assessments.

SQE2 Syllabus

For SQE2, you are required to understand and apply file review skills in context. Your revision should focus on:

• evaluating case papers to extract relevant facts
• issue spotting: identifying and precisely stating legal issues that arise from the facts
• distinguishing between factual and legal issues
• analysing facts to determine potential causes of action and available legal remedies
• identifying substantive and procedural defences based on the client’s position
• structuring legal analysis in clear, logical written form for practice contexts

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 first step you should take when reviewing a new client file to identify legal issues?
2. Which of the following statements is correct regarding defences in file review? a) Defences must be considered only when the client is a defendant. b) A file review should include assessment of both potential and actual defences. c) Procedural defences are not part of issue identification.
3. State two differences between a legal issue and a cause of action.
4. When reviewing a contract dispute file, what are the key issues you would aim to identify for your supervising solicitor?

Introduction

Effective file review and issue identification are central skills for any solicitor. For SQE2, you must be able to analyse documents, pick out relevant facts, and translate them into legal issues, causes of action, and potential defences. This process underpins both legal research and client advice.

Lawyers are often presented with large volumes of information—a mix of client files, correspondence, witness statements, contracts, and court documents. Your task as a trainee or examiner is to sift through this material, paying attention to factual and legal details, to produce a clear analysis for further action.

The File Review Process

A systematic file review involves a series of steps:

1. Determining the client's objectives and situation.
2. Identifying all relevant facts from the file.
3. Picking out the legal issues arising on those facts.
4. Considering which causes of action may be brought or faced.
5. Assessing possible substantive and procedural defences.
6. Summarising your analysis concisely for another lawyer or client.

Key Term: Legal Issue
A specific legal question or dispute which arises from and is defined by the material facts of a case.

Key Term: Cause of Action
The legal basis (set of facts and law) that justifies bringing a claim in court.

Key Term: Defence
A fact or legal argument which, if proven, defeats or reduces liability for a cause of action.

Reading and Extracting Relevant Facts

Establish the facts with reference to the evidence in the file—such as events, dates, actions, omissions, or failures of contractual or statutory duty. Facts only become "material" for your review if they are directly relevant to the legal issues at stake.

Identifying Legal Issues

After extracting the facts, determine which questions of law are in dispute or are significant for the client's objectives. Legal issues may relate to:

• breach of contract (e.g., was there a valid contract? Was there a breach?)
• tortious liability (e.g., did X owe Y a duty of care? Was there a breach of that duty?)
• criminal liability (e.g., do the facts fulfil all elements of the alleged offence?)

Frame legal issues as direct questions (e.g., "Did the seller's failure to deliver goods on time amount to a breach under s.14 Sale of Goods Act 1979?").

Determining Causes of Action

Having identified the issues, consider whether there is a legal right that allows your client (or the other party) to sue. For example, in contract, the cause of action may be 'breach of contract resulting in loss'. In tort, it may be 'negligence causing personal injury'. Each cause of action will have legal elements which you must check are supported by the facts.

Spotting Defences

Assess from the file whether any facts or law would enable a defendant to defeat, reduce, or delay liability. Defences may include:

• Factual denials (e.g., "Our client did not sign the document")
• Legal arguments (e.g., "The claim is time-barred under the Limitation Act 1980")
• Procedural arguments (e.g., "The claim form was improperly served")

State clearly whether each defence is substantive (addresses the substance of the claim) or procedural (relates to the manner of conduct before or during litigation).

Worked Example 1.1

A client brings a file from a previous solicitor. The correspondence reveals goods were delivered two weeks late. The contract includes no time of the essence clause. The client now seeks damages for loss of profit.

Question: What are the key issues to identify?

Answer:
The main issue is whether late delivery, absent a time-of-the-essence clause, constitutes a breach amounting to repudiation or simply entitles the buyer to damages. You should identify the cause of action as 'breach of contract', and assess any potential defences (e.g., waiver, limitation of damages). Frame the legal issue accordingly: "Does late delivery breach this contract on the given facts?"

Worked Example 1.2

The file for a personal injury case shows that the client was injured at work. The employer notes contributory negligence—failure to follow instructions.

Question: What should your file review highlight?

Answer:
The legal issue is whether the employer failed in its duty of care. The cause of action is likely 'negligence'. You must also identify the possible defence of contributory negligence, which could reduce damages awarded.

Exam Warning

Candidates sometimes confuse a legal issue with a cause of action. For SQE2, you must be able to clearly distinguish the two. A legal issue is a legal question arising from the facts; a cause of action is the legal right to bring a specific claim.

Revision Tip

When conducting file review under time pressure, list the relevant facts, issues, causes of action and defences in columns or bullet points for clarity. Practice phrasing legal issues as short, answerable questions.

Key Point Checklist

This article has covered the following key knowledge points:

• A systematic sequence for file review: facts, issues, causes of action, defences.
• The distinction between facts, legal issues, causes of action, and defences.
• Legal issues are the questions for determination by the court.
• Causes of action are established legal rights for a claim.
• Defences may be factual or legal, and must be considered for both claimants and defendants.
• For SQE2, clarity and structure in reporting analysis are essential.

Key Terms and Concepts

• Legal Issue
• Cause of Action
• Defence