Learning Outcomes
After studying this article, you will be able to distinguish between binding and persuasive legal authorities, evaluate the hierarchy of English law sources, and apply the correct approach to authority validation and citation in practical legal research and SQE2-style scenarios. You will also understand the significance of case law precedent and learn how to identify the appropriate report or source for citation in assessments.
SQE2 Syllabus
For SQE2, you are required to understand source hierarchy for authority validation and correct citation. Focus your revision on:
- Authority types: statute, case law, secondary materials (e.g., academic commentary)
- Precedent and the doctrine of stare decisis
- Distinction between binding and persuasive authorities
- Hierarchy and status of legal sources (e.g., Supreme Court, Court of Appeal, High Court, tribunals)
- How to correctly validate, select and cite the strongest available authority
- Application of citation practice (neutral citations, report preference order)
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.
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Which court decisions bind the Court of Appeal (Civil Division)?
- Supreme Court decisions
- High Court (Family Division) decisions
- Its own previous decisions in all cases
- European Court of Human Rights decisions
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Which of the following reports should be cited in preference, if all are available for the same English judgment?
- Law Reports (ICLR)
- Weekly Law Reports
- All England Law Reports
- The Times Law Report
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True or false? A High Court judgment is always binding on all other High Court judges.
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Explain the difference between a binding and a persuasive authority.
Introduction
Understanding the validation and citation of authorities is essential for legal research and effective legal argument in England and Wales. SQE2 assessments expect clear distinctions between binding (authoritative) and persuasive (non-binding) sources, and correct application of citation hierarchy. This article explains the system of precedent, the status of legal materials, and how to approach validation and citation.
The Hierarchy of Legal Sources
Legal research and argument must follow the source hierarchy in English law. This ensures that the strongest authority is relied upon and cited correctly.
Primary Sources
Primary sources—statutes (Acts of Parliament) and case law (judicial decisions)—carry the highest status. Within case law, the relative authority of a decision depends on:
- The court that decided it
- Whether it forms part of the ratio decidendi
- Whether the decision is binding or persuasive on the court considering it
Key Term: primary source
A legal source that contains the law itself—statutes, statutory instruments, and reported case law.Key Term: ratio decidendi
The reason for the decision. The principle of law on which a case is decided and which is binding in later cases.
The Doctrine of Precedent
The common law operates on the doctrine of precedent (stare decisis), requiring courts to follow previous decisions of higher courts, and sometimes their own decisions. The status of a judgment (binding or persuasive) depends on the relative court positions.
Key Term: binding authority
An authority that a court must follow—e.g., a decision of a higher court in the appeal structure or prior decisions of the same court in certain situations.Key Term: persuasive authority
An authority that a court is not obliged to follow, but may consider and be influenced by, such as lower court decisions, obiter dicta, or judgments from other jurisdictions.
The English Court Structure and Binding Precedent
The status of decisions in the court hierarchy is as follows:
- Supreme Court (formerly House of Lords): Binds all lower courts and (usually) itself.
- Court of Appeal: Binds High Court and lower courts. Court of Appeal Civil and Criminal Divisions usually bind themselves, subject to exceptions.
- High Court: Binds County Courts, and single High Court judges generally follow previous High Court decisions but are not strictly bound.
- County Courts and Tribunals: Do not bind other courts but may be persuasive.
Decisions from courts at the same level are generally persuasive but not binding unless special circumstances apply.
Other persuasive sources include:
- Obiter dicta of higher courts
- Judgments from Commonwealth courts (e.g., Australia, Canada)
- Decisions of the Judicial Committee of the Privy Council (on UK law)
- European Court of Human Rights decisions
Worked Example 1.1
Scenario: A solicitor is preparing a legal opinion on a contract law point. Binding Court of Appeal and persuasive High Court decisions both support the client, but two unreported County Court judgments conflict.
Answer:
The Court of Appeal authority must be relied on and cited first—this is binding on all lower courts. The High Court decision is persuasive but strong. The County Court decisions are only weakly persuasive and should only be referenced if directly relevant or for illustration.
Authority Validation: Correct Citation and Preference
Proper legal citation ensures the reader and the court can verify an authority and assess its weight. When citing cases, established hierarchy must be followed for the version of the report.
Case Law Citation Preferences
For English judgments, the order of preference is:
- Law Reports (ICLR: most authoritative, fully checked)
- Weekly Law Reports (WLR)
- All England Law Reports (All ER)
- Specialist law reports (e.g., FLR for family)
- Newspaper reports (e.g., The Times Law Reports)
- Official court transcripts
Neutral citations (from 2001) are now standard for all higher court decisions.
Key Term: neutral citation
A court-assigned reference number that uniquely identifies a judgment independently of any law report.
When more than one report is available, English courts require citation of the highest in the order above.
Statute Citation
Statutes are cited by their short title and year, and, if necessary, section or schedule. Always check the currency and amendments of a statutory provision.
Worked Example 1.2
Question: A Supreme Court decision is available as [2015] UKSC 12; [2015] 1 WLR 212; [2015] 2 All ER 100; and The Times, 15 March 2015. Which citation should be used in a skeleton argument?
Answer:
The judgment should be cited as [2015] UKSC 12; [2015] 1 WLR 212. If required, [2015] 2 All ER 100 can be given, but only after the preferred series.
Validating Authority Status
Always check if a case or statute is current, binding, and not overruled or amended. Use reliable services such as Westlaw or Lexis to confirm authority status and consider any negative judicial treatment.
Exam Warning
For the SQE2 exam, never rely only on persuasive sources if a binding authority exists. Give clear reasons if you rely on persuasive authority due to lack of binding authority or differences in factual scenario.
Revision Tip
When building an argument, always cite the highest binding authority available and reference the correct law report series as required by the English legal system.
Key Point Checklist
This article has covered the following key knowledge points:
- The difference between binding and persuasive legal authority in the English law hierarchy
- The doctrine of precedent (stare decisis) and how it affects which cases a court must follow
- Relative status of Supreme Court, Court of Appeal, High Court, and lower court decisions
- How to validate and cite binding authority, including report preference order
- The use and meaning of ratio decidendi, obiter dicta, and neutral citations
- Always cite the strongest available authority, using the proper form and checking current status
Key Terms and Concepts
- primary source
- ratio decidendi
- binding authority
- persuasive authority
- neutral citation