A student messaged us the week before her sitting with a question that had cost her twenty minutes of revision time. A County Court judge is hearing a contract dispute. There is a High Court decision at first instance that goes against her client, and an older Court of Appeal decision that helps. Is the judge bound by the High Court? Can she simply prefer the Court of Appeal case? She had read three textbooks and still could not answer it with confidence.
That is English Legal System in a nutshell. The rules look like general knowledge until you are asked to apply them under timed conditions, and then the gaps show. In FLK1 this subject rarely appears as a stand-alone block of questions. It hides inside contract, tort and dispute resolution items, dressed up as a question about which authority a judge must follow or where an appeal goes next.
Why English Legal System questions catch out SQE1 FLK1 candidates
Most candidates over-read this subject and under-practise it. You can recite that the Supreme Court sits at the top of the hierarchy, but the assessment does not ask you to recite. It gives you a scenario with two or three competing authorities and asks what the judge must do. The distinction between "binding", "persuasive" and "of no application" is where the marks live.
The other trap is currency. This is one of the few FLK1 subjects where the law has moved noticeably since the SQE launched, particularly on the status of retained EU law. Old notes downloaded from a forum will quietly mislead you.
Treat English Legal System as a set of decision rules, not a set of facts. For every authority in a question, ask three things: which court decided it, was the point part of the reasoning, and is our court below that one?
The court hierarchy that actually gets examined
Start at the top. The Supreme Court, created by the Constitutional Reform Act 2005, binds every court below it. It is not strictly bound by its own previous decisions: it inherited the flexibility set out in the Practice Statement (Judicial Precedent) [1966] 1 WLR 1234, which allows departure where it appears right to do so. Departure is rare and deliberate. R v Jogee [2016] UKSC 8 is the classic illustration — the Court concluded that the law on accessory liability had taken a wrong turn and corrected it.
The Court of Appeal binds the High Court, the County Court, the Crown Court and the magistrates' courts. It is generally bound by its own earlier decisions, subject to the three exceptions in Young v Bristol Aeroplane Co Ltd [1944] KB 718:
- where two of its own previous decisions conflict, it may choose between them;
- where its earlier decision cannot stand with a later decision of the Supreme Court or House of Lords;
- where the earlier decision was reached per incuriam — in ignorance of a relevant statutory provision or binding authority that would have changed the outcome.
The Criminal Division has a little more latitude, because a person's liberty may be at stake; it may depart from its own earlier decision where that decision misapplied the law to the defendant's disadvantage. Examiners like this point because candidates forget that the two Divisions are not identical.
Now back to that student's question. A Divisional Court of the High Court binds the County Court and magistrates' courts, and generally binds itself. But a High Court judge sitting alone at first instance does not bind another High Court judge, and — this is the part that surprises people — a first-instance High Court decision binds the County Court, yet it cannot override a Court of Appeal ruling that is directly in point. The higher authority wins. Her judge follows the Court of Appeal.
Ratio decidendi, obiter dicta and the craft of distinguishing
Only the ratio decidendi binds — the legal reasoning necessary to the decision on the facts. Everything else is obiter dicta: persuasive, sometimes hugely influential, never binding.
Two examples are worth memorising because they do the work of ten. In Donoghue v Stevenson [1932] AC 562, the binding ratio was narrow: a manufacturer owes a duty of care to the ultimate consumer of a product sold in a form that prevents intermediate examination. Lord Atkin's broader "neighbour principle" was, strictly, obiter — yet it shaped the whole of modern negligence. In Central London Property Trust Ltd v High Trees House Ltd [1947] KB 130, Denning J's observations on promissory estoppel were not needed to decide the case, and they too were obiter. Influence and binding force are different things.
Then there is distinguishing, the everyday tool of the advocate. A judge who is bound by a precedent but finds the outcome unattractive will look for a material difference in the facts. Notice the vocabulary the assessment uses, because the words are not interchangeable:
- Overruling — a higher court declares the legal principle in an earlier, separate case to be wrong.
- Reversing — an appellate court changes the outcome of the very same case on appeal.
- Distinguishing — the precedent stands, but does not apply on these facts.
Confusing "overruled" with "reversed" in an answer option is one of the cheapest marks to lose, and one of the easiest to protect.
Sources of law: statute, delegated legislation and assimilated law
Parliament remains the supreme law-making body, and legislation trumps common law. Most law, however, arrives through delegated legislation — statutory instruments made under powers conferred by a parent Act. The key exam point is that delegated legislation, unlike an Act, can be challenged in the courts as ultra vires where the minister has exceeded the powers granted or failed to follow a required procedure. An Act of Parliament cannot be struck down in that way.
On EU-derived law, be careful with older materials. The European Union (Withdrawal) Act 2018 preserved a body of retained EU law after exit; the Retained EU Law (Revocation and Reform) Act 2023 then removed the principle of EU law supremacy and renamed what survives as assimilated law, while widening the ability of higher courts to depart from assimilated case law. If a question tests this, keep your reasoning at the level of principle and follow the latest SRA specification rather than half-remembered detail.
Human rights sits alongside this. Under the Human Rights Act 1998, s 2 requires courts to take into account Strasbourg jurisprudence — not to follow it. Section 3 requires legislation to be read compatibly with Convention rights so far as it is possible to do so, and where that is impossible, s 4 permits a declaration of incompatibility, which does not invalidate the provision. Candidates routinely overstate the effect of a s 4 declaration. It is a signal to Parliament, nothing more.
Appeal routes for SQE1: civil and criminal side by side
Appeals are pure map-reading, and they reward twenty minutes of focused drilling.
In civil claims, permission to appeal is almost always required. Under CPR Part 52 the test is a real prospect of success, or some other compelling reason for the appeal to be heard. An appeal is normally a review of the lower court's decision, not a rehearing. A second appeal to the Court of Appeal faces a tougher filter: it must raise an important point of principle or practice, or there must be some other compelling reason. In rare cases a leapfrog appeal may take a High Court decision straight to the Supreme Court under the Administration of Justice Act 1969, as extended by the Criminal Justice and Courts Act 2015.
On the criminal side, a defendant convicted in the magistrates' court may appeal to the Crown Court, where the appeal takes the form of a full rehearing. Alternatively, either party may appeal by way of case stated on a point of law or excess of jurisdiction, which goes to the Administrative Court. After trial on indictment in the Crown Court, appeal lies to the Court of Appeal Criminal Division, and under the Criminal Appeal Act 1968 the Court will quash a conviction if it considers it unsafe. A further appeal to the Supreme Court requires a certified point of law of general public importance and leave.
Three things to do this week
Draw the hierarchy from memory on a blank sheet, then add arrows showing who binds whom, and mark in red the two places where a court can escape its own earlier decision. If you cannot do it in three minutes, you do not know it yet.
Next, take any negligence or contract case you already know and write one sentence stating its ratio, then one sentence identifying something obiter. Doing this ten times teaches more than reading a chapter on precedent twice.
Then sit twenty single best answer questions where the correct answer turns on procedure rather than substance, and read every explanation — including for the questions you got right. In a 180-question paper with 5 hours 20 minutes on the clock, roughly 107 seconds per question, the difference between a confident candidate and an anxious one is usually recognition speed, not knowledge.
Quick self-test: your client lost in the County Court. The judge followed a Court of Appeal decision that you believe conflicts with an earlier Court of Appeal ruling. What is your route, and what is your argument? If Young v Bristol Aeroplane came to mind within five seconds, you are in good shape.
How CELE SQE can help
We have taught SQE candidates since the very first sitting in 2021, and English Legal System is where we spend time on decision rules rather than definitions — because that is how it is assessed. Our SQE1 courses cover all thirteen subjects across FLK1 and FLK2: the Long-term Course is £3,720, the Mid-term Course £2,750 and the Short-term Course £1,750, with a single-FLK option at half price and £150 off for early bookings or bookings within three months of your exam. If you simply want practice volume, the SQE1 Question Bank subscription is £575 per month, and textbooks are available as a full set at £950 or a single FLK set at £570.
Questions about which route suits your timeline? Reach us on WeChat SQE100, by email at [email protected], or at celebar.com — no pressure, we are happy to talk it through.