The Court Hierarchy

Understanding the court hierarchy is essential for applying the doctrine of precedent. In England and Wales, the hierarchy from lowest to highest is:

• Magistrates’ Court / County Court (lowest)
• Crown Court / High Court
• Court of Appeal
• UK Supreme Court (highest domestic court)

The Court of Justice of the European Union is no longer part of the domestic hierarchy following Brexit, though CJEU decisions made before 31 December 2020 are “retained EU case law” and have a special status under the Retained EU Law Act framework.

The Doctrine of Precedent (Stare Decisis)

The doctrine of precedent requires courts to follow the legal reasoning (ratio decidendi) of decisions made by courts of equal or superior jurisdiction. The key rules are:

• The Supreme Court is bound by its own previous decisions, though it can depart from them where it appears right to do so (Practice Statement 1966).
• The Court of Appeal is generally bound by its own previous decisions, subject to narrow exceptions in Young v Bristol Aeroplane Co [1944]: where there are conflicting Court of Appeal decisions; where a previous Court of Appeal decision was made per incuriam (in ignorance of a binding authority); or where the decision is inconsistent with a later House of Lords/Supreme Court decision.
• The High Court is bound by the Court of Appeal and Supreme Court, but not strictly by its own decisions (though it will usually follow them for consistency).

Ratio Decidendi and Obiter Dicta

Only the ratio decidendi — the legal reason for the decision — is binding on lower courts. Obiter dicta (statements made by the way, not essential to the decision) are persuasive but not binding. Identifying the ratio in a complex case can be difficult — it requires extracting the principle of law that was necessary to decide the case on its specific facts.

The classic SQE1 question in this area presents a scenario and asks whether a lower court must follow a particular earlier decision, or whether there is scope to distinguish or depart from it. The answer depends on the court hierarchy, the closeness of the facts, and whether the decision in question is ratio or obiter.

Statutory Interpretation

Where legislation is ambiguous, courts must interpret it. The main approaches are:

• Literal rule: Apply the ordinary natural meaning of the words, even if the result appears unreasonable.
• Golden rule: Apply the literal meaning unless it would produce an absurd result, in which case a modified meaning may be adopted.
• Mischief rule (and purposive approach): Identify the mischief (gap or problem) the statute was designed to remedy and interpret the words to best remedy it. The purposive approach, now dominant in UK courts, asks what Parliament intended to achieve.

Section 3 of the Human Rights Act 1998 adds a further interpretive obligation: legislation must be read and given effect in a way that is compatible with Convention rights “so far as possible.”

Sources of Law

The principal sources of English law are legislation (primary and delegated), common law (judge-made law through precedent), and equity. European law, though no longer directly applicable, continues to influence domestic law through retained EU law.

• Primary legislation: Acts of Parliament. The supreme source — courts cannot strike down primary legislation.
• Delegated legislation: Statutory instruments, by-laws, Orders in Council. Subject to judicial review for ultra vires.
• Common law: Judge-made law through the doctrine of precedent. Fills gaps not addressed by legislation.

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The legal system provides the framework within which all other SQE1 knowledge operates. Practise English legal system questions on Sqewise, review your performance on all FLK1 subjects on the progress dashboard, and see the complete SQE1 topic list.

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The SRA Standards and Regulations: An Overview

The SRA Standards and Regulations came into force in November 2019. They replaced the previous SRA Handbook and introduced a more outcomes-focused approach. The key documents are:

• The SRA Principles — seven overarching principles that apply to all individuals and firms regulated by the SRA
• The Code of Conduct for Solicitors, RELs and RFLs — individual professional obligations
• The Code of Conduct for Firms — firm-level obligations
• The SRA Accounts Rules — client money and financial obligations
• The SRA Authorisation of Individuals Regulations — qualification and authorisation requirements

The Seven SRA Principles

Every solicitor must act in a way that upholds all seven principles. Where two principles appear to conflict, the one that most effectively serves the overarching purpose of protecting the public interest will take precedence. The seven principles require solicitors to:

• Act in a way that upholds the constitutional principle of the rule of law and the proper administration of justice
• Act in a way that upholds public trust and confidence in the solicitors’ profession and in legal services provided by authorised persons
• Act with independence
• Act with honesty
• Act with integrity
• Act in a way that encourages equality, diversity, and inclusion
• Act in the best interests of each client

Conflicts and Priority

Principles 1 and 2 (rule of law and public trust) take priority over the duty to the client where they conflict. A solicitor must never allow their duty to the client to override their duty to the court or their obligations to the rule of law.

The duty to act in the best interests of the client (Principle 7) is subject to the overriding obligations to the court and to the rule of law. Questions testing this hierarchy are common — always consider whether any higher obligation limits the duty to the client before advising.

Confidentiality and Disclosure

The duty of confidentiality requires a solicitor not to disclose information relating to the client’s matter without the client’s consent — unless compelled by law, required to disclose to prevent a future crime, or in connection with self-defence proceedings.

The duty of disclosure requires a solicitor to share with the client any information material to their matter, subject to confidentiality obligations owed to others. These two duties can conflict — for example, where information from one client would assist another. In such cases the solicitor must usually decline to act for one or both clients.

Conflicts of Interest

A solicitor must not act where there is an own-interest conflict or a significant risk of conflict between two or more clients. A “own interest” conflict arises where the solicitor’s own interests conflict with those of the client. A client conflict arises where the interests of two clients conflict or there is a significant risk of conflict.

Exceptions permit acting for two clients in a conveyancing transaction under certain conditions (standard property transactions, no conflict, informed consent from both parties) — but the rules are strict and frequently tested.

Undertakings

An undertaking is a statement made by a solicitor to another party that the solicitor will do something or refrain from doing something. Undertakings are binding on the individual solicitor — they must be fulfilled even if the client refuses to honour the underlying obligation or goes insolvent. Breach of an undertaking is a serious professional matter.

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The Civil Procedure Rules: Overriding Objective

The CPR are governed by the overriding objective: to enable the court to deal with cases justly and at proportionate cost. This means ensuring parties are on an equal footing, saving expense, dealing with cases proportionately, ensuring cases are dealt with expeditiously and fairly, and allotting an appropriate share of court resources.

The overriding objective is not just background — it is used by courts to interpret and apply every rule in the CPR, and parties are under a duty to help the court further it.

Limitation Periods

Claims must be brought within the relevant limitation period, after which they are time-barred:

• Contract claims: 6 years from the date of breach (simple contract); 12 years (deeds)
• Tort claims: 6 years from the date the cause of action accrued (generally when damage occurred)
• Personal injury: 3 years from the date of injury, or date of knowledge if later
• Defamation: 1 year

For latent damage in negligence (other than personal injury), the limitation period is 6 years from accrual or 3 years from date of knowledge — whichever is later — subject to an overriding 15-year long-stop under the Limitation Act 1980.

Starting Proceedings

Proceedings are started by issuing a claim form in the appropriate court. The claim form must be served within 4 months of issue (2 months if served outside the jurisdiction). Particulars of claim must be served within 14 days of the claim form (or included with it).

Pre-action protocols are a critical area for exam questions. Most types of claim have a relevant protocol. The consequences of non-compliance — adverse costs orders, stays — are frequently tested. Always identify the applicable protocol before advising on commencing proceedings.

Track Allocation

Once a defence is filed, the court allocates the case to one of three tracks:

• Small claims track: Claims up to £10,000 (personal injury/housing: lower limits). Informal procedure; costs recovery very limited.
• Fast track: Claims between £10,001 and £25,000, suitable for trial within one day. Fixed costs apply in most cases.
• Multi-track: Claims over £25,000, or complex claims regardless of value. Full costs recovery available. Active case management by the court.

Interim Remedies

Before or during proceedings, a party may apply for interim remedies including:

• Interim injunctions: The American Cyanamid test — is there a serious question to be tried? Is the balance of convenience in favour of granting the injunction? Are damages an adequate remedy?
• Freezing orders (Mareva injunctions): Restrain a defendant from dissipating assets pending judgment. Require a good arguable case and a real risk of dissipation.
• Search orders (Anton Piller orders): Allow entry to premises to inspect or preserve evidence. Granted without notice only in exceptional circumstances.

Costs

The general rule is that costs follow the event — the losing party pays the winning party’s costs. However, the court has wide discretion. Part 36 offers are particularly important: a claimant who fails to beat a defendant’s Part 36 offer faces cost consequences from the expiry of the offer period.

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The Nature of the UK Constitution

The UK does not have a single codified constitutional document. Instead, the constitution is found in statutes, common law, and constitutional conventions. Key constitutional statutes include the Bill of Rights 1689, the Human Rights Act 1998, and the Constitutional Reform Act 2005.

Parliamentary Sovereignty

Dicey’s classic formulation: Parliament can make or unmake any law; no Parliament can bind its successor; no court can declare an Act of Parliament invalid. This remains the foundational principle, though it has been challenged in practice:

• The Human Rights Act 1998: Courts can make declarations of incompatibility but cannot strike down legislation.
• Constitutional statutes: In Thoburn v Sunderland City Council [2002], Laws LJ suggested constitutional statutes are not impliedly repealed by later inconsistent legislation — a controversial but influential idea.

The Rule of Law

The rule of law — associated with Dicey and Lord Bingham — requires certainty and accessibility of the law; equality before the law; and protection of fundamental rights. The Constitutional Reform Act 2005 placed the Lord Chancellor under a statutory duty to uphold the rule of law and the independence of the judiciary.

Questions about the tension between parliamentary sovereignty and the rule of law — or the extent to which the HRA 1998 creates a constitutional dialogue — are classic SQE1 conceptual questions. Know the arguments on both sides.

Judicial Review

Judicial review supervises the exercise of public powers. It is concerned with whether a decision was made lawfully, not its merits. The main grounds are:

• Illegality: The decision-maker acted ultra vires or made an error of law.
• Irrationality: The decision is so unreasonable that no reasonable decision-maker could have reached it (Wednesbury). Proportionality applies where Convention rights are engaged.
• Procedural impropriety: Failure to follow required procedures, or breach of natural justice — including apparent bias.

The Human Rights Act 1998

Section 3 requires courts to interpret legislation compatibly with Convention rights “so far as possible.” Section 4 empowers higher courts to make declarations of incompatibility. Section 6 makes it unlawful for public authorities to act incompatibly with Convention rights.

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The Statutory Framework: Companies Act 2006, ss. 171–177

The Companies Act 2006 codified directors’ duties for the first time in English law. There are seven duties, owed by every director to the company itself — not to shareholders individually, not to creditors, except in modified form when insolvency is threatened.

The Seven Duties in Detail

• s.171 — Act within powers: Act in accordance with the company’s constitution and only exercise powers for the purposes for which they were conferred.
• s.172 — Promote the success of the company: Act in the way the director considers, in good faith, would most likely promote the success of the company for the benefit of its members as a whole. Must have regard to long-term consequences, employees, relationships, community, environment, reputation, and fairness between members. Shifts towards creditors when insolvency threatens.
• s.173 — Exercise independent judgment: Must not fetter their discretion or agree in advance to vote in a particular way.
• s.174 — Exercise reasonable care, skill and diligence: Dual standard — the general knowledge and skill of a person carrying out the director’s functions, plus the director’s own actual knowledge and skill if higher.
• s.175 — Avoid conflicts of interest: Avoid situations where the director has an interest that conflicts with the company’s interests. Authorisable by the board (non-interested directors forming a quorum).
• s.176 — Not accept benefits from third parties: Do not accept benefits conferred by reason of being a director. No board authorisation exception (unlike s.175).
• s.177 — Declare interest in proposed transaction: Before the company enters a transaction in which the director has an interest, declare the nature and extent of that interest to the other directors.

A common exam question presents a director taking a business opportunity that belongs to the company. This engages s.175 (conflicts) and possibly s.172 (acting in the company’s best interests). Work through each duty — they can overlap, and multiple duties may be breached simultaneously.

Consequences of Breach and Derivative Actions

The company may seek to enforce duties against a director through a derivative action — a claim brought by a shareholder on the company’s behalf under Part 11 CA 2006. The court must give permission for the action to continue and will consider whether a hypothetical independent board would authorise it. Shareholders may ratify a breach by ordinary or special resolution depending on the nature of the duty.

Shadow Directors and De Facto Directors

A shadow director is a person in accordance with whose instructions the directors are accustomed to act. A de facto director acts as a director without having been formally appointed. Both are subject to the majority of CA 2006 duties.

Disqualification

Under the Company Directors Disqualification Act 1986, a director may be disqualified for 2–15 years on grounds of unfitness, persistent filing breaches, or fraud.

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The Three-Stage Negligence Test

To establish negligence, a claimant must prove three things: duty of care, breach of that duty, and damage caused by the breach. All three must be satisfied — a strong argument on two elements cannot compensate for a failure on the third.

Stage 1: Duty of Care

The general test for duty of care comes from Caparo Industries v Dickman [1990]: was the damage reasonably foreseeable? Was there sufficient proximity between claimant and defendant? And is it fair, just, and reasonable to impose a duty?

Certain duty relationships are well established and need not be re-established from scratch in an exam answer. Drivers owe a duty to other road users; doctors owe a duty to patients; employers owe a duty to employees. The Caparo three-stage test becomes important in novel situations — economic loss caused by negligent statements, for example, or liability for psychiatric injury to secondary victims.

• Pure economic loss: Generally not recoverable unless a special relationship exists giving rise to an assumption of responsibility (Hedley Byrne v Heller).
• Psychiatric injury: Primary victims (within zone of physical danger) can recover straightforwardly. Secondary victims must satisfy the Alcock control mechanisms: close ties of love and affection, proximity in time and space, and perception with own unaided senses.

Stage 2: Breach of Duty

Breach is assessed by reference to the standard of the reasonable person. The defendant must have fallen below the standard that the reasonable person in their position would have met. The standard is objective — a learner driver is held to the standard of a competent, qualified driver (Nettleship v Weston).

Where the defendant holds themselves out as having a special skill, the standard is that of a reasonably competent practitioner in that field (Bolam v Friern HMC, as refined by Bolitho).

The courts take into account several factors in assessing breach:

• The probability that harm would occur
• The seriousness of the potential harm
• The cost and practicability of precautions
• The social utility of the defendant’s activity

The res ipsa loquitur doctrine (“the thing speaks for itself”) allows breach to be inferred where the accident is of a type that would not ordinarily occur without negligence, the cause is unknown, and the defendant was in control of the situation. It shifts the evidential burden — it does not reverse the legal burden of proof.

Stage 3: Causation and Remoteness

The claimant must prove that the defendant’s breach caused their damage. The primary test is the “but for” test: but for the defendant’s breach, would the damage have occurred? If the answer is yes (the damage would have happened anyway), causation fails.

Where multiple causes are involved, the Fairchild exception may apply in mesothelioma-type cases involving scientific uncertainty — but this is rarely tested in SQE1 beyond awareness of its existence.

Even if causation is established, the damage must not be too remote. The defendant is liable for damage of a type that was reasonably foreseeable, even if the precise manner or extent was not (The Wagon Mound (No 1)). The thin skull rule provides that where the damage is of a foreseeable type, the defendant takes the claimant as they find them — so if a claimant suffers unusually severe harm due to a pre-existing vulnerability, that does not break the chain of causation.

Defences to Negligence

Two defences commonly arise in SQE1 tort scenarios:

• Contributory negligence: The claimant’s own fault contributed to their damage. Damages are reduced proportionately under the Law Reform (Contributory Negligence) Act 1945. This is not a complete defence — the claim succeeds but damages are reduced.
• Volenti non fit injuria: The claimant freely and voluntarily consented to the risk of harm. This is a complete defence. It requires full knowledge of the risk and a genuine voluntary acceptance — it is rarely established in employment contexts (Smith v Baker).

Occupiers’ Liability and Other Tort Topics

Beyond negligence, the FLK1 tort syllabus includes occupiers’ liability (Occupiers’ Liability Acts 1957 and 1984 — distinguish between lawful visitors and trespassers), vicarious liability (employer liability for employees’ torts in the course of employment), private nuisance, and the rule in Rylands v Fletcher. Each of these warrants its own focused revision, but negligence provides the conceptual foundation.

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Tort law scenarios in FLK1 often blend multiple issues — a single question might require you to assess duty, breach, causation, and defences simultaneously. The only way to get comfortable with this is through applied practice. Start with Sqewise’s tort law practice questions, track your progress across all SQE1 topics, and use the study planner to ensure tort doesn’t get neglected in the final weeks.

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Contract Formation: The Four Essentials

A binding contract requires four elements. Miss any one of them and there is no contract, regardless of how much the parties intended to be bound.

• Offer: A definite proposal to be bound on specific terms. Distinguish from an invitation to treat (shop displays, advertisements, website listings).
• Acceptance: Unconditional agreement to the offer’s exact terms. A counter-offer destroys the original offer (Hyde v Wrench). The postal rule applies to acceptance by post — effective on posting, not on receipt.
• Consideration: Something of value moving from the promisee. Must be sufficient but need not be adequate. Past consideration is not good consideration (Re McArdle). Performance of an existing public duty is not consideration unless something extra is done.
• Intention to create legal relations: Presumed in commercial contexts; rebutted in domestic and social arrangements.

Terms of the Contract

Once a contract exists, you need to identify its terms. SQE1 questions frequently test the distinction between conditions, warranties, and innominate terms — because the classification determines what remedy is available for breach.

• Condition: A term going to the root of the contract. Breach entitles the innocent party to treat the contract as discharged and claim damages.
• Warranty: A lesser term. Breach gives rise only to damages — the innocent party cannot terminate.
• Innominate term: Classification depends on the consequences of breach. If the consequences deprive the innocent party of substantially the whole benefit, the party can terminate (Hong Kong Fir Shipping).

Exclusion clauses require particular attention. They must be incorporated (by signature, notice, or course of dealing) and must on their true construction cover the breach. Under the Unfair Contract Terms Act 1977, business-to-business exclusions of negligence liability must satisfy a reasonableness test.

Implied Terms

Terms can be implied by statute (notably the Sale of Goods Act 1979 / Consumer Rights Act 2015 for goods), by custom, or by the courts (terms implied in fact under the business efficacy or obvious inference tests, and terms implied in law). The Supreme Court confirmed in Marks & Spencer v BNP Paribas that business efficacy and obvious inference are alternative routes, not cumulative requirements.

In SQE1 scenarios, always read the question facts carefully for whether a term has been incorporated before analysing whether it has been breached. Examiners frequently include facts that suggest the clause was never properly incorporated.

Vitiating Factors

A contract that appears valid on its face may be voidable or void due to a vitiating factor. The key vitiating factors tested in SQE1 are:

• Misrepresentation: A false statement of fact (not opinion, not future intention) that induces the contract. Fraudulent, negligent (s.2(1) Misrepresentation Act 1967), or wholly innocent. Remedy: rescission (all types) and damages (for fraudulent and s.2(1)).
• Mistake: Common mistake (both parties wrong about the same thing — difficult to establish); mutual mistake (parties at cross-purposes); unilateral mistake (one party wrong, other knows or ought to know).
• Duress and undue influence: Duress includes economic duress (unlawful threat leaving no reasonable alternative). Undue influence may be presumed in certain relationships.

Breach and Remedies

The standard remedy for breach of contract is damages — the aim is to put the claimant in the position they would have been in had the contract been performed (expectation loss). Reliance loss (wasted expenditure) is an alternative measure. Damages must not be too remote: the defendant is liable for losses arising naturally from the breach and for losses within the reasonable contemplation of both parties at the time of contracting (Hadley v Baxendale).

The claimant has a duty to mitigate their loss. Agreed damages clauses (liquidated damages) are enforceable if they are a genuine pre-estimate of loss; they are unenforceable penalty clauses if they are extravagant and unconscionable relative to legitimate interests (Cavendish Square v Makdessi).

Specific performance and injunctions are equitable remedies, available only where damages are inadequate.

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FLK1: Business and Property Law

FLK1 covers the subjects that arise most commonly in transactional and commercial legal practice. The core topics tested in FLK1 are:

• Contract Law — formation, terms, breach, remedies, vitiating factors
• Tort Law — negligence, occupiers’ liability, nuisance, defamation, vicarious liability
• Business Law and Practice — company law, directors’ duties, partnerships, insolvency
• Property Law and Practice — freehold and leasehold conveyancing, mortgages, co-ownership
• Wills and Administration of Estates — validity, intestacy, personal representatives
• Dispute Resolution — civil procedure, limitation, interim remedies, costs

FLK2: People and Criminal Law

FLK2 covers the subjects that arise most frequently in personal client and criminal practice:

• Criminal Law and Practice — offences against the person, property offences, procedure, sentencing
• Trusts — express, resulting, constructive trusts; certainties; breach and remedies
• Solicitors’ Accounts — SRA Accounts Rules, client money, interest
• Legal Services — SRA Standards and Regulations, principles, complaints, regulatory framework
• Constitutional and Administrative Law — parliamentary sovereignty, judicial review, human rights

Wait — Aren’t Some Topics in Both Papers?

Yes. The SRA’s approach is that a qualified solicitor needs functioning legal knowledge across all areas, but certain topics have greater overlap. Solicitors’ accounts and legal services, for example, are tested in FLK2 but the underlying regulatory principles run across both papers. You won’t be penalised for applying, say, contract law knowledge in a scenario that primarily arises in FLK1 — but the questions are designed to be self-contained.

The SRA publishes a detailed Subject Matter Specification for the SQE1. Every revision plan should start with that document — it tells you exactly what rules you’re expected to know.

How the Papers Differ in Practice

FLK1 tends to have a strong quantitative element in property and business questions — you may need to calculate stamp duty land tax, work out apportionment figures in a conveyancing transaction, or apply loan-to-value ratios. Build comfort with basic arithmetic and financial calculations for FLK1.

FLK2 contains the criminal law scenarios, which often involve multiple defendants, partial defences, or procedural decisions. These questions test your ability to apply nuanced rules quickly. Criminal procedure in particular — bail, disclosure, modes of trial — requires precise knowledge rather than broad understanding.

Should You Sit Them in the Same Session?

Most candidates sit FLK1 and FLK2 in the same examination period, typically on consecutive days. There are arguments for and against:

• Same session: Momentum, consistent preparation period, no gap where knowledge fades
• Split sessions: Reduces total revision pressure, allows deeper focus per paper

The majority of candidates who use a well-structured revision platform and begin preparation at least four months before the exam date are well-equipped to sit both papers together. If you’re starting with less than ten weeks to go, consider whether splitting is more realistic for your circumstances.

Revision Strategy: Should You Study FLK1 and FLK2 Together?

The most effective approach is to study them in parallel rather than sequentially. Complete contract law, then do some criminal law, then move to tort, then trusts. This interleaving is harder in the short term but produces stronger retention — a well-established finding in cognitive psychology.

Use your progress tracking to keep an eye on mastery across both papers simultaneously. Sqewise’s smart selector balances questions from both paper subjects automatically, so gaps don’t build up silently in one area while you’re focused on the other.

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Sqewise covers all FLK1 and FLK2 subjects in one platform. You can filter your practice sessions by subject, or let the smart selector allocate questions based on where you need the most work. Visit our SQE1 topics page for the full subject breakdown, or see how Sqewise works.

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