A candidate messaged us last week, two days after a mock. The question had given her a High Court judge sitting at first instance, a 2019 decision of another High Court judge on identical facts, and a 2003 Court of Appeal decision pointing the other way. Four plausible options. She chose the one that said the judge was bound by the earlier High Court decision — and lost the mark. "I know the hierarchy," she wrote."
That is the honest shape of the problem. Almost nobody fails an English Legal System question because they have never heard of the Supreme Court. They fail because precedent questions are built from small, precise relationships — who binds whom, in which division, on which part of the judgment — and because those relationships look obvious on a revision sheet and dissolve under exam pressure.
Court Hierarchy in SQE1 FLK1: Who Binds Whom
Start with the skeleton, because every precedent MCQ is a variation on it. The Supreme Court, created by the Constitutional Reform Act 2005, sits at the top of the domestic hierarchy. Its decisions bind every court below it in England and Wales. It is not bound by its own previous decisions, though it treats them as normally binding — more on that shortly.
Below it, the Court of Appeal binds the High Court, the county court, the Crown Court and the magistrates' courts. It also binds itself, subject to a short list of exceptions. The two divisions matter: the Civil Division and the Criminal Division do not bind each other, and the Criminal Division has a little more latitude to depart from its own earlier decisions where a person's liberty is at stake (R v Taylor [1950] 2 KB 368).
The High Court is where candidates slip. A Divisional Court of the High Court binds High Court judges sitting alone. But a High Court judge sitting at first instance is not bound by the decision of another High Court judge at first instance. The convention is that such a decision should be followed unless the later judge is convinced it is wrong — strong persuasive authority, not binding authority. That is exactly the distinction our candidate missed, and exactly the distinction examiners love.
At the bottom, the county court, the Crown Court and the magistrates' courts bind nobody. Their decisions are not precedents at all in the strict sense.
Quick drill: cover the paragraphs above and answer aloud — does a Divisional Court decision bind a later Divisional Court? Does a 1998 Court of Appeal (Civil Division) decision bind the Criminal Division today? If you hesitate on either, the hierarchy is not yet automatic.
Ratio Decidendi and Obiter Dicta: The Part That Actually Binds
Only the ratio decidendi binds — the legal reasoning necessary to the decision on the material facts. Everything else is obiter dicta: persuasive, sometimes extremely influential, never binding.
Donoghue v Stevenson [1932] AC 562 is the standard illustration and worth holding in your head precisely. The ratio is that a manufacturer owes a duty of care to the ultimate consumer of a product where there is no reasonable possibility of intermediate examination. Lord Atkin's wider "neighbour principle" — love your neighbour, who in law is anyone so closely and directly affected by your act that you ought reasonably to have them in contemplation — was obiter. It later shaped the whole of negligence, but it did not decide the case. A well-drafted MCQ will test whether you can tell those two statements apart.
Two practical consequences. Where a judgment contains multiple reasons, each independently sufficient, courts generally treat each as part of the ratio. And where an appellate court splits, you must find the reasoning shared by the majority — a dissenting judgment is persuasive only, however compelling it reads.
So when a question hands you a quotation from a judgment and asks whether a later court must follow it, the real question is rarely about hierarchy. It is: was this statement necessary to the outcome?
Departing, distinguishing and overruling
Candidates use these three words interchangeably in essays and then pay for it in MCQs, where the options are deliberately built from the difference.
- Distinguishing — a later court finds the material facts sufficiently different, so the earlier ratio does not apply. The earlier case survives untouched. This is the everyday tool of advocacy.
- Overruling — a higher court (or the Supreme Court dealing with its own earlier decision) declares an earlier decision wrong in law. It operates retrospectively, because the theory is that the court is declaring what the law always was.
- Reversing — an appellate court changes the outcome of the very same case on appeal. Different concept entirely, and it appears in distractor options constantly.
On the Supreme Court's freedom: London Street Tramways v London County Council [1898] AC 375 established that the House of Lords was absolutely bound by its own decisions. That position was relaxed by the Practice Statement (Judicial Precedent) [1966] 1 WLR 1234, which allowed departure where it appeared right to do so, while recognising the danger of disturbing settled expectations — particularly in contract, property and criminal law. The Supreme Court inherited that power. R v R [1992] 1 AC 599, removing the marital rape exemption, is the example most candidates can deploy in a sentence.
For the Court of Appeal, learn Young v Bristol Aeroplane Co Ltd [1944] KB 718. Three exceptions: where there are two conflicting earlier Court of Appeal decisions, the court chooses between them; where its earlier decision cannot stand with a later Supreme Court (then House of Lords) decision; and where the earlier decision was given per incuriam, meaning in ignorance of a relevant statutory provision or binding authority. Per incuriam is narrow — careless reasoning is not enough.
Persuasive Authority: Privy Council, Strasbourg and Assimilated Law
Decisions of the Judicial Committee of the Privy Council are persuasive, not binding, because the Privy Council is not part of the domestic hierarchy. Willers v Joyce (No 2) [2016] UKSC 44 added a practical refinement: the Privy Council may direct that its decision represents the law of England and Wales, in which case domestic courts may follow it in preference to an otherwise binding domestic authority. Obiter statements of the Supreme Court, decisions of senior courts in other common law jurisdictions, and academic writing all sit in the same persuasive category.
Under section 2 of the Human Rights Act 1998, a domestic court determining a question connected with a Convention right must take into account relevant Strasbourg jurisprudence. Take into account — not be bound by. That verb is the whole point of the question when it appears.
Retained EU law, now generally referred to as assimilated law following the Retained EU Law (Revocation and Reform) Act 2023, has its own framework governing when higher courts may depart from pre-exit case law. You do not need the fine detail for FLK1, but you should be able to say, without hedging, that the ordinary domestic rules of precedent are modified in this area and that departure powers sit with the higher courts. Where you are unsure, answer at the level of the current SRA specification rather than guessing at a section number.
How Precedent Is Tested in SQE1 FLK1 — and What to Do About It
English Legal System sits within Legal Systems in FLK1. From the January 2027 sitting, SQE1 questions are grouped by session, and Legal Systems falls in FLK1 Session 2 alongside Tort and Contract Law.8 minutes a question. There is no time to reason from first principles about who binds whom.
So build the recall rather than the reasoning. Three things that work:
Draw the hierarchy from memory, daily, for a week. Blank sheet, sixty seconds, arrows for binding force, note the two Court of Appeal divisions separately, mark the High Court first-instance position explicitly. When it comes out identically five days running, stop.
Read the facts of precedent MCQs backwards. Identify the deciding court first, then the court that produced the earlier authority, then ask whether the relevant statement was part of the ratio. Most wrong answers come from reading forwards and anchoring on the first court mentioned.
Keep a one-line case bank. Six entries will carry you: Donoghue v Stevenson (ratio versus obiter), Young v Bristol Aeroplane (Court of Appeal exceptions), the 1966 Practice Statement, R v R (departure in practice), R v Taylor (Criminal Division latitude), Willers v Joyce (Privy Council). One line each, no more. Resist the urge to write paragraphs you will never reread.
Common trap: an option that says a court "must distinguish" an earlier case. Distinguishing is a judicial choice based on material facts, never an obligation. If an option imposes a duty to distinguish, be suspicious.
One more habit worth building. Precedent does not stay in English Legal System — it is the machinery behind every tort, contract and land law answer you will give. When you read that a particular rule comes from a Court of Appeal decision, pause for two seconds and ask which courts that binds. Do that for a few weeks and the hierarchy stops being a revision topic and becomes the way you read law.
How CELE SQE Can Help
Our courses cover all 13 SQE1 subjects across FLK1 and FLK2, with English Legal System taught through the kind of hierarchy drills and ratio-spotting work described above rather than through passive reading. The SQE1 Long-term Course is £3,720, the Mid-term £2,750 and the Short-term £1,750, with single-FLK study available at half those prices and £150 off for early bookings or where your exam falls within three months. If you would rather test yourself before committing, the SQE1 Question Bank runs at £575 per month and is the fastest way to find out whether your precedent knowledge survives the clock.com, or WeChat SQE100 — questions welcome, no obligation.
