Published: Tue, 03 Apr 2018
Tackling Problem Questions
Problem questions are usually presented on law courses and this tutorial relates to law problem questions – but the methods described can easily be adapted to any other type of problem question.
The formula for tackling a law/legal problem question is as follows:
- Offer a brief introduction identifying the relevant area of law and any major legislation or cases that will be relevant
- Identify relevant issues – do not repeat the question or the facts
- Identify relevant legislation and/or case law (use only one or two relevant cases for each point you make and don’t just regurgitate the facts of the precedent case)
- Apply the facts to the legislation/case law
- Conclude (you may not be able to give a definite answer)
Many students lose marks by failing to achieve a proper balance of these tasks e.g. by writing everything they know about the law in that area and concluding very briefly in relation to the facts.
Where there are several issues in the question, you may want to break your answer into sub headings to avoid confusion. Where two issues are dealt with by the same legislation/case law, you can include these in one heading to avoid repetition.
Example of a law problem question
This example applies the formula given above to a problem question. It uses numbers only to identify which part of the above formula is being dealt with.
Question: “John was employed by Stealthjet plc in their factory assembling a new top secret design of high-tech fighter jets for military use. He was killed in an explosion at the factory. His Widow, Jessica, wishes to establish that the defective design of the fighter jets, or the system for making them, caused the explosion, and so to recover damages from Stealthjet plc. Advise Jessica whether she is likely to succeed in a claim against Stealthjet plc”.
SECTION 1 (INTRODUCTION) : The principle area that this question is concerned with, is the doctrine of public interest immunity. This doctrine is intended to ensure that documents are not revealed in the course of litigation if it is not in the public interest to do so. Originally, such a claim could only be made by the Crown and was known as ‘Crown Privilege’. In Duncan v Cammell Laird (1942) AC 624, the House of Lords held that any claim made by the Crown under the doctrine must be accepted; however, this was reversed in Conway v Rimmer (1968) Ac 910, and it is now for the Courts to decide whether or not it is in the public interest for the documents to be disclosed.
This is your introduction. In a problem question this will be very brief, identifying the area of law, and any major cases or statutes that are significant.
SECTION 2 : In this scenario, Jessica will be suing her late husband’s employers, Stealthjet plc, for negligence in failing to provide him with a safe system of work. She will need to obtain the plans of the fighter jets and of their manufacturing system in order to identify the defects that gave rise to the explosion. However, the Ministry of Defence will want to claim that it is against the public interest that these plans be disclosed, despite the fact that the Ministry are not a party to the case. The course of English legal proceedings means that disclosing documents requires them to be revealed to the other parties and their legal representatives, and to the judge. There is ample opportunity for the documents to get into the wrong hands.
Here you are identifying the major issues and facts – you should be looking at any problems that arise out of the scenario. There is no need to repeat the question as this just wastes your word count and suggests you haven’t really understood what is being asked.
SECTION 3. In Conway v Rimmer, the House of Lords held that, in deciding whether documents should be disclosed or not, two aspects of the public interest had to be balanced. The first was a public interest in ensuring no harm was done to national interest by disclosing the documents which should be kept secret. The second related to the public interest in ensuring that the conduct of litigation was not frustrated. In Conway, the Court distinguished between claims based on the contents of the relevant documents, and those based on a class to which the documents belonged – generally, contents claims would be stronger than class claims.As a consequence of the Scott Inquiry into the Matrix Churchill affair, the government announced that it would no longer make class claims, but only claims based on the contents of particular documents. If required, the Courts could inspect the documents to weigh up the value of the arguments for and against disclosure.
This section deals with the relevant legislation and/or case law. There is only one case relevant to this scenario – however, for other areas of law (e.g. contract, tort) you may find there are many, and you need to be selective, using only one or two recent valid cases to support your argument.
SECTION 4. Applying the principles of these cases to the facts of the scenario, it seems probable that the likelihood of Jessica establishing the liability of Stealthjet plc will be almost completely dependent on access to the documents which, if they should reveal design flaws, will prove her case in themselves. The litigation will be frustrated if she is unable to gain access to them.However, against disclosure, the public interest immunity claim will be based on the contents of the documents, and it will be extremely difficult to dispute a claim that it will pose a grave threat to national security if the plans of how to build the new military fighter jet (which are “top secret”) fell into the wrong hands. Inspection of the documents is unlikely to be necessary to convince the Court that these are genuine state secrets.Comparison may be made to Duncan v Cammell Laird (1942) where the Admirality was clearly justified in wishing to keep secret the plans of its latest submarine.
This section applies the relevant legislation and/or case law to the facts of the scenario. It weighs up the strength of each side of the argument but doesn’t yet propose a conclusion (although it may be apparent as to which argument will succeed).
SECTION 5. Whilst there is no doubt that the Courts have the power to order the disclosure of documents in the interests of justice, even where their content is sensitive, it is doubtful that they would do so in this case. Although there is a public interest that the litigation is not frustrated, there is a stronger public interest that the plans to the military jet do not fall into the wrong hands, and this would be a strong possibility if disclosure were ordered. The Court is, therefore, unlikely to order disclosure of the plans that Jessica needs to establish her case and the case would, therefore, fail.
(Adapted from Source: Clements, R & Kay J (2004/5) Constitutional and Administrative Law (3rd Edition) Oxford University Press
The final section is your conclusion. You need to make sure in this section that you have answered the question posed (i.e. in this case, whether Jessica is likely to succeed). The conclusion draws together the various parts of your findings – you may not, however, always be able to give a firm conclusion. If the outcome depends on some factor you do not know, you should say so (and you can give more than one possible outcome in such a case).
Note that our example does not use referencing as we are just looking at the structure of your answer here.
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