Identifying the issues

The first step in producing a good answer to a problem question is to identify the issues. This is a matter of identifying what the question is about from a legal point of view. At the planning stage, you will be reading through the question with a view to spotting and noting the issues.

The testing of skills begins with the reading of the problem question. First, you need to break down the problem and identify the material facts. Always read the problem questioningly. If, in the facts of the problem question, you are told a child is seven years old ask, ‘why have I been told this? What is the legal significance of this fact in the context of the question?’ The only true exception to the proposition that all the facts are included for a reason (namely to be commented upon in answering the question) is that some facts are included simply to make the story more readable. The name of the cafe in the first example discussed below falls into this category. There is, however, also a quasi-exception, where facts are introduced by way of red herrings. Some students regard this as a form of cheating by the examiner, on the basis that such facts do not relate to the answer; but this is to misunderstand the point. Red herrings will only distract those who do not really understand the relevant law, and therefore their introduction is a perfectly legitimate way of testing the true extent of the students’ understanding. In other words, and being perfectly consistent with the general principle that all facts are mentioned for a reason, red herrings are introduced so that you may comment on them, even though your only comment will be to identify their irrelevance.

Secondly, you need to identify the legal issues raised by the facts. It may be that you consider the facts to be too far-fetched to be taken seriously. Two points arise. First, the facts of some of the most important legal cases are themselves quite improbable, as the discussion of Donoghue v Stevenson (below) illustrates. Secondly, and perhaps more importantly, you must understand that the questions are constructed in order to bring out certain points which the examiner expects you to be able to identify and discuss. This may well result in an intrinsically improbable storyline; but problem questions never pretend to be essays in social realism anyway.

Finally, you need to identify any legal claims and defences that the parties may have. A party who has no recognisable legal claim, or a party who does have such a claim but who will be met with a cast-iron legal defence, will have no legal redress. Evaluating possible claims and defences at the planning stage will not only help you to identify the contentious legal issues raised by the problem, but will also enable you to dispose of any straightforward and uncontentious issues in a sentence or two.