Analysis and reporting - Validating and updating the law

Learning Outcomes

After completing this article, you will be able to check whether case law and legislation are still authoritative and current, identify where to confirm currency and status, accurately report the source and date of legal authorities, and explain the consequences of relying on outdated or uncertain law in SQE2 client analysis and advice.

SQE2 Syllabus

For SQE2, you are required to understand and apply effective methods for validating and updating legal authorities as part of the analysis and reporting process. In your revision, focus on:

• confirming whether a case is still “good law” and understanding indicators such as overruling, application, or distinction in later judgments
• establishing whether statutory provisions are in force, have been repealed, or amended
• identifying and using up-to-date, consolidated, and reliable legal sources, both online and in print
• providing clear, accurate reporting of the law’s currency and risks in written legal advice or analysis
• recording your research steps, including the exact date and version of authorities relied upon

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. Why must every authority cited in client advice be checked for current status, even if it appears in a recent textbook?
2. Describe how you would confirm whether a statutory section is in force, repealed, or has pending amendments.
3. What information must be included when reporting the status of case law relied upon in your legal analysis?
4. What is the correct approach if you discover your legal authority may be subject to a recent change or is showing a currency warning in your research tool?

Introduction

In SQE2, you are expected to provide legal analysis and advice based strictly on law that remains current and reliable as of the date of writing. This means you are required to check—at the point of reporting—whether all authorities cited (cases, statutes, statutory instruments) are still valid and in force, and to communicate the status transparently in any report or client advice. Failing to validate or report currency can result in misleading advice, marks lost, or real-world risks.

Validating Case Law: Is the Authority Still Good Law?

You must check if a case remains “good law” before you rely on it in analysis or advice. This means confirming whether the decision has been applied, affirmed, distinguished, doubted, or overruled by a later court. The most efficient tools are online case citators and case analysis services.

Key Term: Case Citator
A resource, usually an online database or print index, that tracks the citation and subsequent judicial treatment of case law, showing if it has been applied, overruled, distinguished, or doubted by later judgments.

A warning symbol, red flag, or caution icon in a citator indicates that the authority of the case is in doubt—often because it was overruled by a superior court or has been criticized and limited.

Worked Example 1.1

You find a 2017 Court of Appeal case on Westlaw with a red warning. Case Analysis shows it was overruled by a 2021 Supreme Court judgment. Should you still rely on the earlier case?

Answer:
No. Once overruled by the Supreme Court, the earlier decision no longer states the law on that point. You must check what the new authority is and base your advice on the latest binding position.

Validating Legislation: Status, Amendments, and Commencement

You must confirm that the statutory provision you rely on is in force and reflects all amendments up to the present date. Statutes may be amended, repealed, or only partly commenced. Reliable online databases or official print consolidations will indicate the current legal effect and any pending changes.

Key Term: Consolidated Legislation
The up-to-date text of a statute or statutory instrument that incorporates all amendments and repeals made since the original enactment.

Key Term: Commencement
The date on which a statutory provision comes into legal effect—which may be on Royal Assent, by a statutory instrument, or on a later date.

Online resources like Westlaw, LexisLibrary, or legislation.gov.uk normally flag if a section is not yet in force, is repealed, or has pending changes that have not been applied. Always check for warning banners or amendment notes before relying on a section.

Worked Example 1.2

You propose to advise on s 15 of the Companies Act 2006. The database notes: “Part repealed, further amendments not yet incorporated.” What must you do before finalising your report?

Answer:
You must read the amendment and repeal notes, identify what parts of s 15 have changed or are about to change, and explain these risks to the client or principal. If there is uncertainty or delay in consolidating new amendments, mention that the law may be in flux and reference the latest available date/status in your advice.

Recording the Source, Date, and Currency of the Law

As part of your SQE2 analysis or advice, always report:

• The authority you relied on (full citation).
• The database, print resource, or original source (e.g., “LexisLibrary Case Overview, checked 2 May 2024”; “s 32, Employment Rights Act 1996 (Westlaw version updated to March 2024)”).
• The date on which you checked the law and the law’s claimed currency as shown in your source.
• Any known or potential risks (such as “amendments pending”, “overruled by later Supreme Court decision”, or “not updated since October 2023”).

Key Term: Law Currency
The status of a legal authority as of a specified date, confirming it is accurate and not affected by later developments.

Key Term: Legal Research Trail
A record of research steps, sources checked, dates consulted, and search terms used, allowing another practitioner to reproduce and verify the research and its conclusions.

Where your source states it is not fully up to date, or another source gives a more current position, this must be stated clearly.

Worked Example 1.3

You cite a 2020 High Court decision in a client opinion, based only on commentary in a 2021 textbook. Your supervisor notes a 2023 Court of Appeal case has overruled the 2020 authority. What went wrong?

Answer:
Your mistake was failing to check a current citator or database and to report the law’s actual date and status. For SQE2 and for competent practice, you must use the most current sources and report the exact date of law checked.

Revision Tip

After you finish your research, always re-check the current status of your key authorities on the day you complete your final analysis or advice.

Exam Warning

SQE2 answers that do not state the date, source, and legal status of authorities are liable to drop marks—even if the substantive analysis would otherwise be correct.

Essential Tools for Validation and Updating

For practical legal research, you should be able to use:

• Online citators and case analysis services (e.g., Case Analysis on Westlaw, Case Overview on LexisLibrary), including warning symbols and judicial history summaries.
• Online or print versions of consolidated and updated statutes, with status notes and histories.
• Commencement tables and status snapshots accompanying legislation.
• Current Law Case Citator and Legislation Citator for print-based confirmation of status/judicial history.
• Official resources on legislation.gov.uk, being aware of warning banners on currency or partial updates.

Key Point Checklist

This article has covered the following key knowledge points:

• Checking the current status of authorities is mandatory before giving legal advice or SQE2 analysis.
• Use case citators or analysis tools to confirm whether a case is good law or has been overruled.
• Always rely on consolidated, up-to-date statutory text, and check whether the relevant provision is in force or pending amendment.
• When reporting, state the source, version date, and status of every legal authority used, as well as any associated risks or warnings.
• Maintain a clear legal research trail—including dates and resource versions—to evidence your results and support effective client advice.

Key Terms and Concepts

• Case Citator
• Consolidated Legislation
• Commencement
• Law Currency
• Legal Research Trail