Analysis of claim — causes of action, forum, merits

DR.01 — Analysis of a Claim: Causes of Action, Forum, Merits

Before issuing, a solicitor must work through three questions: what can we sue on, where, and is it worth it?

Causes of action

• Identify every viable legal basis (e.g. breach of contract, negligence, breach of statutory duty). One set of facts can ground several causes — plead all that are sustainable.
• For each, map the elements to the facts and ask what evidence proves each element. The claimant bears the legal burden on the balance of probabilities.
• Identify the remedy sought (damages, debt, specific performance, injunction, declaration) — this drives valuation and forum.

Limitation (a merits gate, not an afterthought)

Limitation Act 1980: 6 years for contract (s.5) and tort (s.2), running from breach (contract) or when damage accrues (negligence). 3 years for personal injury (s.11), with the s.14 date-of-knowledge extension and s.33 discretion to disapply. 12 years for actions on a deed/specialty (s.8). Latent damage: s.14A 3-year secondary limit, s.14B 15-year long-stop. A time-barred claim is a complete defence — check first.

Forum / allocation

• County Court vs High Court: most money claims start in the County Court. A non-PI money claim may be issued in the High Court only if its value is > £100,000; a personal-injury claim may be issued in the High Court only if valued at £50,000 or more. Otherwise it starts in the County Court (genuine complexity, importance or specialist jurisdiction can also justify the High Court).
• Tracks (CPR Part 26, renumbered, in force 6 April 2024):
  • Small claims: up to £10,000 (personal-injury PSLA element capped at £5,000 for a qualifying RTA claim (accident on/after 31 May 2021), £1,000 in the rule 26.10 exception cases, and £1,500 for non-RTA PI).
  • Fast track: £10,000–£25,000.
  • Intermediate track (introduced Oct 2023): £25,000–£100,000, lower-complexity claims with fixed recoverable costs.
  • Multi-track: over £100,000 or complex.
• Check jurisdiction and any contractual jurisdiction/arbitration or ADR clause.

Merits and viability

• Assess prospects of success, the defendant's solvency / ability to pay (a strong claim against a man of straw is worthless), enforceability, costs proportionality, and ADR.

Common traps

• Missing limitation, or misdating accrual (breach vs damage).
• Confusing the High Court/County Court value thresholds with the track thresholds — they are different tests.
• Forgetting fixed recoverable costs now bite on fast and intermediate tracks.
• Note assimilated law (REUL Act 2023 renamed retained EU law; supremacy ended at the end of 2023) where an EU-derived cause of action is in play. Be precise on departure: REUL Act 2023 s.6 (the new departure test and lower-court reference procedure) never commenced and was revoked, so EUWA 2018 s.6 still governs — the Court of Appeal and Supreme Court may depart from assimilated case law on the usual own-precedent basis, while lower courts remain bound.

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