The judiciary and the court system - Court hierarchy and jur...

Learning Outcomes

This article explains the structure and operation of the courts of England and Wales, including:

• the hierarchy of civil and criminal courts, distinguishing inferior, senior and Supreme Court levels, and how this hierarchy underpins appeals and precedent
• the allocation of civil and criminal cases to specific courts and tracks, distinguishing original from appellate jurisdiction and identifying which courts hear typical first-instance matters
• the main appeal routes in civil and criminal proceedings, including permission tests, appeals by way of case stated, judicial review in the Administrative Court, and leapfrog appeals to the Supreme Court
• the doctrine of judicial precedent, including the concepts of stare decisis, ratio decidendi and obiter dictum, and how vertical and horizontal binding operate across the hierarchy
• recognised mechanisms for avoiding or changing precedent, such as distinguishing, overruling and reversing, and the limited exceptions in Young v Bristol Aeroplane and the Supreme Court’s power to depart from its own decisions
• the scope of rights of audience in each court level, including higher rights of audience for solicitors in civil and criminal proceedings and the role of solicitor advocates and barristers.

SQE1 Syllabus

For SQE1, you are required to understand the court system's structure and operation in England and Wales, including identifying the appropriate court for different types of cases and understanding the routes and bases for appeals. Knowledge of judicial precedent is also essential, with a focus on the following syllabus points:

• The court hierarchy: inferior vs senior courts, divisions of the High Court, and specialist lists
• Civil vs criminal jurisdiction; trial vs appellate jurisdiction
• Allocation of civil claims to tracks and forum (County Court vs High Court)
• Criminal case allocation (summary, either-way, indictable-only); Youth Court
• Routes and tests for appeal in civil and criminal cases; permission requirements
• Appeals by way of case stated and judicial review (Administrative Court)
• Further appeals to the Court of Appeal and Supreme Court; leapfrog appeals
• The doctrine of judicial precedent (stare decisis), ratio decidendi and obiter dictum
• Vertical and horizontal binding; Young v Bristol Aeroplane exceptions; Supreme Court’s power to depart
• Rights of audience; higher rights of audience for solicitors; scope in civil and criminal proceedings

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 stands at the apex of the court hierarchy in England and Wales for both civil and criminal matters?
   1. Court of Appeal
   2. High Court
   3. Supreme Court
   4. Crown Court
2. What is the meaning of ratio decidendi?
   1. A judge's remark made in passing.
   2. The legal reasoning essential to the decision in a case.
   3. A summary of the case facts.
   4. The final verdict delivered by the court.

3. True or false: Decisions of the County Court set binding precedents for the Magistrates' Courts.

4. Which division of the High Court typically deals with complex commercial disputes, trusts, and probate matters?
   1. King's Bench Division
   2. Family Division
   3. Chancery Division
   4. Administrative Court

Introduction

A sound understanding of the court structure in England and Wales is fundamental for any prospective solicitor. This structure is hierarchical, meaning courts are organised into different levels, each with specific powers and responsibilities. This hierarchy dictates not only where cases are initially heard but also the path appeals take. Coupled with this structure is the concept of jurisdiction, which defines the authority of each court to hear particular types of cases—broadly divided into civil and criminal matters. Furthermore, the doctrine of judicial precedent ensures consistency, requiring courts to follow decisions made by higher courts. This article explores these core components, essential for approaching the SQE1 assessment.

Key Term: Court Hierarchy
The ranking of courts within a legal system according to their authority, determining appellate routes and the application of precedent.

The Court Hierarchy

The courts of England and Wales operate within a clear hierarchy. This structure is essential for the administration of justice, determining which courts have authority over others and the routes for appealing decisions. Decisions made by higher courts generally create legal precedents that lower courts must follow.

Inferior and Superior Courts

Courts are broadly classified as inferior or superior. Inferior courts handle the majority of cases at first instance and have limited geographical and/or case-value jurisdiction. Superior courts generally deal with more complex cases, appeals, and set binding precedents.

• Inferior Courts: Primarily Magistrates' Courts and County Courts.
• Senior Courts: Defined by the Senior Courts Act 1981 as the Court of Appeal, High Court, and Crown Court.
• Supreme Court: The final court of appeal, sitting above the Senior Courts.

Key Term: Senior Courts
The Crown Court, High Court of Justice and Court of Appeal, each created or recognised and governed by the Senior Courts Act 1981.

Civil and Criminal Courts

The court system differentiates between civil and criminal matters, although some courts handle both.

Key Term: Jurisdiction
The legal power and authority of a court or judge to hear and decide a specific type of case or dispute.

Civil Courts

Civil courts resolve disputes between individuals, companies, or other organisations. The main civil courts are:

• County Court: Handles the majority of civil claims, including contract disputes, tort claims (like personal injury), and land matters, generally up to a certain financial value. Claims are allocated to different 'tracks' (small claims, fast track, multi-track) depending on value and complexity. The County Court also hears certain appeals from district judges to circuit judges.

Key Term: Original Jurisdiction
The authority of a court to hear a case for the first time (at first instance).

Key Term: Appellate Jurisdiction
The authority of a court to review decisions made by a lower court.

• High Court: Deals with more complex and high-value civil cases. It has three divisions: King's Bench (contract, tort, judicial review via the Administrative Court), Chancery (business law, companies, insolvency, trusts, probate, land), and Family (complex family matters, appeals from Family Court). It has both original and appellate jurisdiction. Specialist courts sit within the Business and Property Courts (e.g., Commercial Court, Technology and Construction Court, Insolvency and Companies Court).

Key Term: Divisional Court
A panel of at least two High Court judges hearing appeals or certain cases (often in the King’s Bench Division) including case stated appeals and some criminal matters.

Key Term: Administrative Court
A specialist court within the King’s Bench Division of the High Court that hears judicial review claims and certain statutory appeals.

• Court of Appeal (Civil Division): Hears appeals from the High Court and, in some instances, the County Court and certain tribunals.
• Supreme Court: The final court of appeal for civil cases from England and Wales (and the rest of the UK). Permission is granted only on arguable points of law of general public importance.

Criminal Courts

Criminal courts deal with prosecutions brought by the state (usually via the Crown Prosecution Service) against individuals accused of committing criminal offences.

• Magistrates' Courts: Deal with virtually all criminal cases at first instance. They handle summary offences (less serious crimes), some triable-either-way offences (mid-range seriousness), and preliminary hearings for indictable-only offences (most serious crimes). They also deal with bail applications and some youth justice matters.
• Youth Court: A specialist magistrates’ court dealing with defendants aged 10–17. Serious offences (e.g., homicide) may be sent to the Crown Court.
• Crown Court: Deals with serious criminal cases (indictable-only offences like murder or rape) and triable-either-way offences sent from the Magistrates' Court (either by the magistrates or elected by the defendant). Trials usually involve a judge and jury. It also hears appeals from Magistrates' Courts (a full rehearing).
• Court of Appeal (Criminal Division): Hears appeals against conviction and/or sentence from the Crown Court.
• Supreme Court: Hears appeals on points of law of general public importance from the Court of Appeal (Criminal Division).

Civil Case Allocation and Tracks

Civil procedure allocates cases to tracks to match cost and complexity:

• Small Claims Track: Generally up to £10,000 (and up to £1,000 for most personal injury general damages), with informal procedure and restricted costs.
• Fast Track: Generally up to £25,000 with limited trial length, standard directions, and costs control.
• Multi-Track: More complex or high-value cases; judicial case management is active, directions are tailored, and costs budgets may be controlled.

Forum selection depends on value, complexity, and importance. Many claims up to £100,000 (or personal injury up to £50,000) start in the County Court; certain complex business disputes may start in the High Court even if the value is modest.

Criminal Case Allocation

• Summary offences: Tried in the Magistrates’ Court.
• Either-way offences: Allocated after considering seriousness and sentencing powers. Defendants may elect jury trial in the Crown Court.
• Indictable-only offences: Sent to the Crown Court.

Allocation considers the magistrates’ sentencing powers (typically up to six months’ custody for a single offence, or twelve months in aggregate for multiple offences), prior convictions, and the complexity of evidence.

Jurisdiction

Jurisdiction defines a court's authority. Key types include original and appellate jurisdiction.

• Courts with primarily original jurisdiction: Magistrates' Court, County Court.
• Courts with both original and appellate jurisdiction: Crown Court, High Court.
• Courts with primarily appellate jurisdiction: Court of Appeal, Supreme Court.

Subject matter jurisdiction relates to the type of case (e.g., family, commercial), while geographical jurisdiction relates to the area the court covers. The High Court also exercises general jurisdiction (e.g., to grant injunctions and deal with abuse of process), subject to statute.

Key Term: Appeal by way of case stated
A statutory appeal from the Magistrates’ Court (or Crown Court sitting as an appellate court from the magistrates) on a point of law or excess of jurisdiction to the High Court (Divisional Court).

Key Term: Leapfrog Appeal
A procedure allowing certain High Court decisions to be appealed directly to the Supreme Court, bypassing the Court of Appeal, where statutory criteria and certification are satisfied.

Worked Example 1.1

A complex dispute arises over the ownership of patented technology valued at £5 million between two large corporations based in London and Manchester. Which court is most likely to have jurisdiction?

Answer:
This is a high-value civil dispute concerning intellectual property (patents). The High Court (Chancery Division), which includes the Patents Court, would have jurisdiction. Given the value and complexity, it would likely start in the High Court rather than the County Court. The geographical location of the parties is less critical for High Court jurisdiction compared to lower courts.

Appeals and Permission

Civil appeals generally require permission from the lower court or the appellate court. The standard test is whether the appeal has a real prospect of success or there is some other compelling reason. First appeals are usually to the next level of judge or court; further appeals (to the Court of Appeal or Supreme Court) require certification on points of law of general public importance and permission.

Criminal appeals to the Court of Appeal (Criminal Division) require leave. The test for conviction appeals is whether the conviction is unsafe. Prosecutors have limited appeal rights (e.g., references on unduly lenient sentences for specified serious offences, or interlocutory appeals against terminating or evidential rulings with permission).

Appeal by Case Stated vs Judicial Review

Case stated is a narrow statutory appeal route confined to errors of law or jurisdiction. Judicial review to the Administrative Court addresses public law errors (illegality, irrationality, procedural impropriety) and is generally available only where no adequate alternative remedy exists.

Worked Example 1.2

The Court of Appeal (Civil Division) is hearing a case concerning the interpretation of a specific clause in a standard form commercial contract. There is a directly relevant precedent from a High Court decision made five years ago interpreting the same clause. There are no Supreme Court decisions on point. Is the Court of Appeal bound by the High Court decision?

Answer:
No. The Court of Appeal is not bound by decisions of the High Court. Decisions of the High Court are binding on inferior courts (like the County Court) but only persuasive for the Court of Appeal. The Court of Appeal would consider the High Court's reasoning but is free to depart from it if it believes the High Court judge erred in law.

Worked Example 1.3

Magistrates convict D of a summary offence after excluding a defence witness for lateness. D wishes to challenge the conviction. Which route is appropriate: case stated or judicial review?

Answer:
Appeal by way of case stated to the High Court (Divisional Court) is appropriate. It challenges the magistrates’ decision on a point of law or excess of jurisdiction and is the preferred route over judicial review where available.

Revision Tip

Map the appeal routes: Magistrates’ Court → Crown Court (rehearing) or Divisional Court (case stated); Crown Court → Court of Appeal (Criminal Division); County Court/High Court → Court of Appeal (Civil Division); targeted public law challenges → Administrative Court (judicial review).

The Doctrine of Judicial Precedent

The English common law system relies heavily on judicial precedent, also known by the Latin phrase stare decisis ('to stand by things decided'). This means that courts are bound by the past decisions of higher courts (and sometimes their own previous decisions) when the legal principles and material facts are similar.

Key Term: Precedent
A principle or rule established in a previous legal case that is authoritative for a court when deciding subsequent cases with similar issues or facts.

Key Term: Stare Decisis
The legal principle of determining points in litigation according to precedent. It ensures consistency and predictability in the law.

Binding and Persuasive Precedent

• Binding Precedent: A precedent from a higher court that must be followed by lower courts in the same hierarchy. The ratio decidendi (reason for the decision) of the case forms the binding element.
• Persuasive Precedent: A precedent that is not binding but may influence a judge's decision. This includes decisions from lower courts, courts in other jurisdictions, obiter dicta (things said 'by the way' in a judgment), and dissenting judgments. Decisions of the Privy Council and the European Court of Human Rights are persuasive.

Key Term: Binding Precedent
A previous court decision which must be followed by a lower (or sometimes the same level) court in subsequent similar cases.

Key Term: Persuasive Precedent
A previous court decision or legal reasoning that a court may consider but is not obliged to follow.

Ratio Decidendi and Obiter Dictum

Only the ratio decidendi of a judgment is binding. This is the core legal principle or rule necessary for the decision reached in the case, based on the material facts. Obiter dicta are other remarks made by the judge(s) that are not essential to the decision. While not binding, obiter comments, especially from senior judges, can be highly persuasive.

Key Term: Ratio Decidendi
The legal principle or rule upon which the decision in a specific case is based; the essential reasoning forming the binding part of a precedent.

Key Term: Obiter Dictum
A judge's statement in a judgment that is not essential to the decision and therefore not legally binding as precedent (plural: obiter dicta).

Hierarchy and Precedent

• Supreme Court: Binds all lower courts. Since 1966 (Practice Statement), it can depart from its own previous decisions when it appears right to do so, although this power is used sparingly to maintain certainty.
• Court of Appeal: Binds all lower courts (High Court, Crown Court, County Court, Magistrates' Court). It is generally bound by its own previous decisions (horizontal stare decisis), subject to limited exceptions established in Young v Bristol Aeroplane Co Ltd [1944] (e.g., conflicting previous CA decisions, a previous CA decision conflicting with a later Supreme Court decision, or a decision made per incuriam). The Criminal Division has slightly more flexibility to depart where an individual's liberty is at stake.
• High Court: Binds inferior courts. Decisions made by Divisional Courts (panels of judges hearing appeals) are binding on single High Court judges hearing cases at first instance. Single High Court judges' decisions are persuasive but not strictly binding on other High Court judges.
• Crown Court, County Court, Magistrates' Court: Do not create binding precedents. Decisions of the Crown Court (a superior court) can be persuasive.

Avoiding Precedent

Judges may avoid following a precedent if they can:

• Distinguish: Find material differences between the facts of the current case and the precedent case.
• Overrule: A higher court can declare a precedent set by a lower court (or potentially its own earlier decision, in the case of the Supreme Court) as wrong, effectively invalidating it for future cases. (Note: Only superior courts can overrule precedents).
• Reverse: An appellate court overturns the decision of the lower court in the same case. This is distinct from overruling a precedent established in a different case.

Worked Example 1.4

A High Court decision holds that a “vehicle” excludes electric scooters under a 1990 statute. A later case in the Court of Appeal concerns a 2010 statute defining “motor-powered vehicle” broadly. Must the Court of Appeal follow the High Court’s earlier decision?

Answer:
No. The Court of Appeal is not bound by High Court decisions and can distinguish the earlier case due to statutory wording changes and context. It may treat the prior High Court judgment as persuasive only.

Exam Warning

Be careful not to confuse the hierarchy of courts for precedent purposes with the routes for appeal. While related, they are distinct concepts. For precedent, the key is whether the previous decision came from a court higher in the hierarchy. The specific appeal route might differ (e.g., some County Court appeals go to the High Court, others to the Court of Appeal, but Court of Appeal decisions always bind both).

Rights of Audience

Rights of audience refer to the right of a legal professional to appear before a court and represent a client (i.e., to conduct advocacy).

• Barristers: Traditionally specialised in advocacy and have full rights of audience in all courts upon qualification.
• Solicitors: Have automatic rights of audience in inferior courts (Magistrates', County Court). To appear in the Senior Courts (Crown Court, High Court, Court of Appeal) and the Supreme Court, solicitors must obtain specific 'Higher Rights of Audience' qualifications for either civil or criminal proceedings (or both). Solicitors who hold higher rights are often referred to as solicitor advocates.

Key Term: Rights of Audience
The entitlement of a legal professional to appear before a court, representing a client and conducting advocacy.

Key Term: Higher Rights of Audience
Additional advocacy qualifications enabling solicitors to appear in senior courts in civil and/or criminal proceedings.

Revision Tip​

Distinguish “rights of audience” from the “right to conduct litigation.” Rights of audience concern oral advocacy in court; conduct of litigation is a separate reserved legal activity (e.g., issuing claims, managing proceedings) regulated under the Legal Services Act 2007.

Summary

The English court system is hierarchical, with the Supreme Court at the apex, followed by the Court of Appeal, High Court, Crown Court, County Court, and Magistrates' Court. Jurisdiction defines which court can hear a case, based on factors like case type (civil/criminal) and seriousness or value. The doctrine of judicial precedent (stare decisis) dictates that lower courts are bound by the legal principles (ratio decidendi) established in the decisions of higher courts. Courts can distinguish precedents based on factual differences or, if higher up, overrule incorrect precedents. Rights of audience determine which legal professionals can represent clients in specific courts.

Key Point Checklist

This article has covered the following key knowledge points:

• The structure of the English court hierarchy, from Magistrates'/County Courts up to the Supreme Court
• The distinct roles and jurisdictions of civil courts (County Court, High Court divisions, CA Civil, Supreme Court) and criminal courts (Magistrates', Youth Court, Crown Court, CA Criminal, Supreme Court)
• The difference between original jurisdiction (hearing cases first) and appellate jurisdiction (hearing appeals), including the general jurisdiction of the High Court
• Allocation of civil claims to tracks and forum; criminal case allocation (summary, either-way, indictable-only)
• The routes, tests and permission requirements for civil and criminal appeals
• Appeal by way of case stated vs judicial review; the role of the Administrative Court and Divisional Court
• Further appeals and leapfrog procedure to the Supreme Court on points of law of general public importance
• The doctrine of judicial precedent and its operation in the hierarchy; vertical and horizontal binding
• The distinction between the binding ratio decidendi and persuasive obiter dicta
• Methods for avoiding precedent: distinguishing, overruling, reversing
• Rights of audience and higher rights of audience: scope for solicitors and barristers

Key Terms and Concepts

• Court Hierarchy
• Jurisdiction
• Original Jurisdiction
• Appellate Jurisdiction
• Senior Courts
• Divisional Court
• Administrative Court
• Appeal by way of case stated
• Leapfrog Appeal
• Precedent
• Stare Decisis
• Binding Precedent
• Persuasive Precedent
• Ratio Decidendi
• Obiter Dictum
• Rights of Audience
• Higher Rights of Audience