Authority validation and citation - Hierarchy: binding vs pe...

Learning Outcomes

This article explains the hierarchy of binding and persuasive legal authorities and the correct approach to authority validation and citation for SQE2, including:

• Distinguishing between binding and persuasive authorities and explaining how precedent operates within the English court hierarchy
• Evaluating which courts bind others and when courts at the same level or tribunals are merely persuasive
• Applying recognised exceptions to Court of Appeal self-binding and understanding the Supreme Court’s ability to depart from its own decisions
• Assessing the status and persuasive weight of Privy Council, Commonwealth, EU (post-Brexit), and European Court of Human Rights decisions
• Selecting the most appropriate law report or source for citation, including use of neutral citations, preferred report series, specialist reports, and pre-1865 English Reports
• Validating whether cases and statutory provisions remain good law using authoritative research tools and citators
• Applying accurate citation and pinpointing techniques in SQE2-style written and oral assessments, ensuring that the strongest available authority is presented effectively

SQE2 Syllabus

For SQE2, you are required to understand source hierarchy for authority validation and correct citation, with a focus on the following syllabus points:

• 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)
• Recognised exceptions to Court of Appeal self-binding and Supreme Court departure from precedent
• Post-Brexit status of EU case law and the use of European Court of Human Rights authorities
• Pinpoint citation by paragraph and selecting correct report series, including pre-1865 English Reports

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. Which court decisions bind the Court of Appeal (Civil Division)?
   1. Supreme Court decisions
   2. High Court (Family Division) decisions
   3. Its own previous decisions in all cases
   4. European Court of Human Rights decisions
2. Which of the following reports should be cited in preference, if all are available for the same English judgment?
   1. Law Reports (ICLR)
   2. Weekly Law Reports
   3. All England Law Reports
   4. The Times Law Report

3. True or false? A High Court judgment is always binding on all other High Court judges.

4. 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. It also addresses the practicalities of report selection, neutral citations, and how decisions from tribunals, the European Court of Human Rights, and EU courts are treated.

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.

Key Term: obiter dicta
Judicial observations not essential to the decision. These are not binding but may be persuasive, especially when expressed by higher courts.

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.

Key Term: stare decisis
“To stand by decided matters.” The doctrine requiring courts to follow precedents established by higher courts, and sometimes their own prior decisions.

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 may depart from its own previous decisions where appropriate (following the House of Lords Practice Statement 1966 as continued in the Supreme Court era).
• Court of Appeal: Binds the High Court and lower courts. The Civil Division is generally bound by its own prior decisions, subject to recognised exceptions (Young v Bristol Aeroplane Co Ltd [1944] KB 718):
  • Where there are conflicting Court of Appeal decisions, it may choose which to follow.
  • Where a Court of Appeal decision conflicts with a subsequent Supreme Court/House of Lords decision, it must follow the higher court.
  • Where a prior decision was given per incuriam (e.g., overlooking a relevant statute or binding authority). The Criminal Division has slightly more flexibility to depart from its own decisions where justice demands, particularly affecting liberty (e.g., R v Gould [1968] 2 QB 65).
• High Court: Binds County Courts. Single High Court judges usually follow previous High Court decisions (especially Divisional Court decisions), but are not strictly bound and may depart in rare cases; Divisional Courts of the High Court (e.g., QB Divisional Court) bind magistrates’ courts and the Crown Court on points of law.
• County Courts and Tribunals: Do not bind other courts but may be persuasive. Within the tribunal structure, Upper Tribunal decisions bind the First-tier Tribunal on the same chamber areas (e.g., the Upper Tribunal (Administrative Appeals Chamber) binds First-tier (Social Entitlement Chamber)), and the Employment Appeal Tribunal binds Employment Tribunals.

Decisions from courts at the same level are generally persuasive but not binding unless special circumstances apply (e.g., Court of Appeal exceptions above).

Other persuasive sources include:

• Obiter dicta of higher courts
• Judgments from Commonwealth and other jurisdictions (e.g., Australia, Canada)
• Decisions of the Judicial Committee of the Privy Council (on UK or Commonwealth law), which are often accorded considerable respect but are not binding on English courts
• European Court of Human Rights decisions (persuasive; courts must “take into account” under s.2 Human Rights Act 1998)
• Post-Brexit EU decisions (see below)

Post-Brexit EU law: The European Union (Withdrawal) Act 2018 created a category of “retained EU law” and vested the continued relevance of certain CJEU decisions. The Retained EU Law (Revocation and Reform) Act 2023 removed EU law supremacy and re-framed retained EU law as “assimilated law” from 2024, giving domestic appellate courts greater flexibility to depart from EU case law. As a practical rule in SQE2-style reasoning, CJEU decisions are no longer binding on domestic courts, but may be taken into account when interpreting assimilated law or EU-derived provisions where continuity is relevant.

Key Term: assimilated law
Post-2024 term for the body of law previously known as retained EU law. It comprises UK law derived from EU law, now interpreted under domestic principles without EU law supremacy. Pre-Brexit CJEU case law may be considered but is not binding.

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.

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.

Worked Example 1.3

Scenario: In a draft for the Court of Appeal (Civil Division), you find two previous Court of Appeal decisions that conflict, neither overruled by the Supreme Court. Which should you follow?

Answer:
Apply the Young v Bristol Aeroplane exceptions: the Court of Appeal may choose between conflicting decisions at the same level. Explain the conflict, identify which precedent better aligns with binding higher authority and principle, and justify selecting it. If a later Supreme Court decision covers the point, follow that instead.

Worked Example 1.4

Scenario: You wish to cite a European Court of Human Rights judgment supporting an Article 8 privacy argument in the High Court.

Answer:
ECHR decisions are persuasive, not binding. Under s.2 HRA 1998, courts must “take into account” Strasbourg jurisprudence. Cite the ECHR case, explain its reasoning, and align it with binding domestic authority where possible (e.g., House of Lords/Supreme Court or Court of Appeal cases applying HRA). If domestic authority differs, reason why the ECHR approach is persuasive in the specific facts.

Worked Example 1.5

Scenario: You are interpreting a domestic regulation derived from an EU directive, now classified as assimilated law. A pre-2021 CJEU case directly addresses the same interpretative issue.

Answer:
The CJEU case is not binding but may be taken into account. Explain why the reasoning is persuasive for continuity and legal certainty. Check for domestic appellate decisions post-2020 addressing the same provision; if present, follow domestic binding authority. If none, you may rely on the CJEU analysis as persuasive support.

Worked Example 1.6

Question: You need to cite a leading pre-1865 case on offer and acceptance. How should you present the citation?

Answer:
Use the nominate report with the English Reports reprint, e.g.: Boulton v Jones (1857) 2 H & N 564, 157 ER 252. If a modern edited report exists in the official Law Reports, prefer that; otherwise, the English Reports reprint is acceptable.

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:

1. Law Reports (ICLR: most authoritative, fully checked)
2. Weekly Law Reports (WLR)
3. All England Law Reports (All ER)
4. Specialist law reports (e.g., FLR for family; EHRR for human rights; CMLR for EU)
5. Newspaper reports (e.g., The Times Law Reports)
6. 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. Include the neutral citation immediately after the party names (see the Practice Direction (Judgments: Form and Citation) [2001] 1 WLR 194). Pinpoint references should be to paragraph numbers for neutral-cited judgments, and to page numbers for report series where appropriate.

Practical points:

• Always place the neutral citation first, followed by the preferred report citation(s).
• Use pinpoints to direct the reader to the exact passage: paragraph numbers for neutral citations; page and column or paragraph numbers for older reports.
• For unreported judgments without a neutral citation, include the court and precise date in brackets, e.g., Berk v Hair (DC, 12 September 1956).
• For pre-1865 cases, use the original nominate report and the English Reports reprint citation.

For EU cases, post-2015 an ECLI (European Case-Law Identifier) functions like a neutral citation. A full citation may include case number, ECLI, and report reference, e.g.: Case C-403/03 Schempp v Finanzamt München EU:C:2005:446, [2005] ECR I-6421.

For European Court of Human Rights authorities, use HUDOC neutral references if available, and prefer established report series when needed (EHRR; BHRC).

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. Where older statutes pre-date 1963, regnal year citations may be necessary; modern practice uses short title and year. Identify the correct Act among similarly titled legislation (e.g., multiple Education Acts) and cite the precise provision number (e.g., s. 4A, inserted by later amendment).

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. Case citators and legislation analysis tools provide editorial flags and links to subsequent treatment and amending instruments.

Effective validation tips:

• Use Westlaw UK Case Analysis or LexisLibrary Case Search to check whether a case is still good law and to trace appellate history.
• For legislation, use Westlaw’s Legislation Analysis or LexisLibrary’s Statute Snapshot to see commencement, amendments, and in-force versions. Legislation.gov.uk provides free access to statutes and statutory instruments with revision notes; check update status notices at the top and use the “point in time” function for historical versions.
• BAILII provides free access to judgments and legislation but may mix original and revised texts; verify currency against an authoritative source.
• For secondary materials (textbooks, Halsbury’s Laws/Statutes), use cumulative supplements and Noter-Up services to ensure updates are incorporated.

Practical hierarchy reminders:

• Binding authority from a higher court trumps persuasive material, even if persuasive material is more recent.
• Within the same level, apply recognised exceptions (Court of Appeal) before departing from precedent.
• Tribunal decisions are typically persuasive across jurisdictions, but within a tribunal structure the upper tier binds the lower tier.
• ECHR decisions are persuasive; domestic statutes and higher English courts remain binding.

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
• Recognised exceptions to Court of Appeal self-binding and Supreme Court’s ability to depart from its own decisions
• Relative status of Supreme Court, Court of Appeal, High Court, and lower court decisions, including Divisional Courts and tribunals
• The persuasive status of Privy Council, Commonwealth, EU (post-Brexit) and ECHR authorities
• How to validate and cite binding authority, including report preference order and neutral citation
• Pinpoint citation practices and pre-1865 English Reports usage
• The use and meaning of ratio decidendi, obiter dicta, stare decisis, assimilated law, and neutral citations
• Always cite the strongest available authority, using the proper form and checking current status with reliable citators and legislation analysis tools

Key Terms and Concepts

• primary source
• ratio decidendi
• obiter dicta
• binding authority
• persuasive authority
• stare decisis
• neutral citation
• assimilated law