Introduction to legal

research

This element will provide an introduction to legal research

and explain why it is important.
Introduction
Overview

In this element you will:

• learn about the skill of legal research;
• consider its importance; and
• begin to understand how to evaluate the relevance, reliability and currency of sources.
Introduction

Legal research = the use of legal resources to research and address a client’s particular problem
or issue.
Introduction

‘Legal research’ is really an umbrella term for various interconnected skills:

• Research

• Analysis

• Application
Introduction

What differentiates forms of research?

• Aims

• Methodology

• Sources

• Analysis

• Reasoning

• Ethics
Professional conduct

• SRA Code of Conduct for Solicitors

• BSB Handbook
• CILEx Code of Conduct

Use reliable sources – NOT Google or Wikipedia.

Sources: context

Relevance Reliability Currency

Sources: relevance

Is your source relevant to the subject matter of your research?

Is it likely to yield useful, applicable information?

Sources: reliability

Is your source reliable?

Can it be trusted to provide you with accurate, current information?

Will it be trusted by the court (if applicable)?

Sources: currency

Does your source provide an up-to-date articulation of the law?

Is it of present, or historical, relevance?

Are there recent relevant cases or statutes which your source does not consider?
Introduction
Summary

• Legal research requires research, analysis and application.

• Always consider the rules of professional conduct.
• Analyse sources for relevance, reliability and currency.
Legal research resources

This element will explore the different types of legal

research resources available.
Legal research resources
Overview

In this element you will:

• consider the difference between legal and non-legal sources; and
• explore the different primary and secondary sources that are available.
Legal and non-legal sources

Legal sources Non-legal sources

• Primary sources of law • Non authoritative

• Authoritative commentary commentary about the law
about the law
Legal sources

Secondary Other
Primary Sources
Sources
Sources

There is a wide range of

other materials that might
Official sources of the law support your research. You
Recognised commentary
itself (the ‘black letter’ of will need to distinguish
and practitioner materials.
legislation, case law and between legal and non-
related sources). legal (e.g. academic,
journalistic, discursive)
sources.
Legal sources

Secondary
Primary
Sources
Sources

Practitioner texts
Statutes Journals
Statutory instruments Professional commentary
Rules Books
Regulations Websites
Case reports
 Primary sources
(‘black letter’ law)

legislation case law

primary legislation secondary legislation

Acts of statutory statutory codes of

Parliament instruments practice
 Secondary sources
(commentary)

practitioner encyclopaedic
textbooks journals other reference works
works works
 You will generally find it
easiest to start with a
secondary source,
Secondary sources commentating (generally)
on the relevant area of law.

You must then verify that

Verification in other secondary secondary source with
sources other (potentially more
specialised) secondary
sources

The secondary sources

Primary
will direct you to the
sources relevant
primary sources.
Legal research resources
Summary

• There is a distinction between legal and non-legal sources.

• You will be referring to primary and secondary sources most.
• Where you start your research depends on the complexity of the problem.
Primary sources

This element will explore the different types of primary

source available.
Primary sources
Overview

In this element you will:

• learn about the different types of primary source;
• consider primary and secondary legislation;
• consider the uses of case law;
• explore citations and law reports.
 Primary sources

legislation case law other (eg equity)

Legislation

‘Legislation’ includes:

• Primary legislation – official Acts of Parliament; and

• Secondary/delegated legislation – law created by a body empowered

by Parliament to do so.

Halsbury’s
Westlaw UK LexisLibrary
Statutes
Case law

Case law reports will include:

• A summary of the facts of the case at hand;

• Direct application of a point of law to that case (ratio decidendi);

• Indirect consideration of a point of law (obiter dicta);

• The decision which is binding between the parties.

Case law

Options when cases are similar:

• Follow/approve/apply

• Reverse/overrule/disapprove/not followed

• Distinguish
Case law

Case law is primarily used:

• To ascertain how the courts have interpreted and applied specific legislation.
• To ascertain how the courts have previously/recently ruled on specific or
problematic legal issues.
• To enable an informed prediction as to the likely result for a client, should that
client choose to litigate.
• To advise a client fully, by reference to all relevant risks, so that they can make
informed decisions about their future plans or strategies in the light of the current
legal position.
Case law: neutral citation

Richardson v Howie [2004] EWCA Civ 1127

Case law: law report citation

Pepper v Hart 1993 AC 593

Case law: law reports

‘Where a judgment is reported in the Official Law

Reports (A.C., Q.B., Ch., Fam.) published by the
Incorporated Council of Law Reporting for England
and Wales, that report must be cited. These are the
most authoritative reports; they contain a summary of
the argument. Other series of reports and official
transcripts of judgment may only be used when a
case is not reported in the Official Law Reports.’
Case law: law reports
The Official Law Most authoritative and should be
Reports used wherever possible

The Weekly Law

Reports

All England Law

Reports Less authoritative but should be
used if the (Official) Law Report is
Specialist law not available
reports

Official transcript
of the judgment

Should not really be

Case reports in the
press relied upon for legal
research purposes
Case law: law reports

Examples of abbreviations: All England Law Reports

• AER

• AELR Raistrick’s Index to Legal Abbreviations

• All ER

• All Eng Cardiff Index to Legal Abbreviations

• All Eng Rep

Case law

It is very important to:

• read the full report; and

• check that the case is still good law.

Case law

When ascertaining the importance of a case, consider:

• How often it has been cited in other cases; and

• Which court it was heard in.

Case law

If you find conflicting case law, check:

• the dates of the authorities;

• the seniority of the courts; and

• the facts of the cases themselves.

Primary sources: other sources

Parliamentary International Private

Equity
conventions treaties customs

A series of legal Elements of the

Unwritten Instruments of
doctrines, each law that have
understandings about international law
concerned with developed over
how something in which form part of
principles of fairness time through
Parliament should be the law of England
and justice and custom. For
done. and Wales.
administered by the example, certain
courts. easements.
Primary sources
Summary

• The two main primary sources are legislation and case law.
• There are two types of legislation – primary and secondary/delegated.
• Make sure you understand how case law is reported (including how citations are
used).
• Read case reports in full.
Analysing legislation

This element will explore how to analyse legislation

and apply it to a legal problem.
Analysing legislation
Overview

In this element you will learn how to analyse legislation and apply it to the facts of a
legal problem.
The issue

Your client has been arrested for possession of Diazepam (Valium) with intent to supply
it to others. A box containing 500 tablets was found in the boot of the client’s car.

s 5(3) Misuse of Drugs Act 1971

s 5(3) Misuse of Drugs Act 1971

Do you understand the sub section?

Could you explain it to your client?

How would you summarise its key elements?

s 5(3) Misuse of Drugs Act 1971
s 5(3) Misuse of Drugs Act 1971

What does s 28 say?

s 5(3) Misuse of Drugs Act 1971

What does s 28 say?

Is Diazepam a ‘controlled drug’?

s 5(3) Misuse of Drugs Act 1971

What does s 28 say?

Is Diazepam a ‘controlled drug’?

Are tablets found in the boot of a car considered to be in your ‘possession’?

s 5(3) Misuse of Drugs Act 1971

What does s 28 say?

Is Diazepam a ‘controlled drug’?

Are tablets found in the boot of a car considered to be in your ‘possession’?

What does it mean to have ‘intent to supply’?

s 5(3) Misuse of Drugs Act 1971

What does s 28 say?

Is Diazepam a ‘controlled drug’?

Are tablets found in the boot of a car considered to be in your ‘possession’?

What does it mean to have ‘intent to supply’?

What does s 4(1) say?

Misuse of Drugs Act 1971
Misuse of Drugs Act 1971
Misuse of Drugs Act 1971
Misuse of Drugs Act 1971
s 5(3) Misuse of Drugs Act 1971

What does s 28 say?

Is Diazepam a ‘controlled drug’?

Are tablets found in the boot of a car considered to be in your ‘possession’?

What does it mean to have ‘intent to supply’?

What does s 4(1) say?

s 5(3) Misuse of Drugs Act 1971
s 5(3) Misuse of Drugs Act 1971

What does s 28 say?

Is Diazepam a ‘controlled drug’?

Are tablets found in the boot of a car considered to be in your ‘possession’?

What does it mean to have ‘intent to supply’?

What does s 4(1) say?

s 28 Misuse of Drugs Act 1971
s 5(4) Misuse of Drugs Act 1971
s 5(3) Misuse of Drugs Act 1971

What does s 28 say?

Is Diazepam a ‘controlled drug’?

Are tablets found in the boot of a car considered to be in your ‘possession’?

What does it mean to have ‘intent to supply’?

What does s 4(1) say?

s 4(1) Misuse of Drugs Act 1971
The issue

Your client has been arrested for possession of Diazepam (Valium) with intent to supply
it to others. A box containing 500 tablets was found in the boot of the client’s car.

Did the client know that the tablets were in the boot?

If they did know, did they know that they were Diazepam?

If they knew that, why were the tablets in the boot and what were they intending to do with them?
Analysing legislation
Summary

• Being able to analyse legislation is an important skill.

• Explore databases such as Westlaw and LexisLibrary.
• Keep practising!
Analysing a case

This video explains how to analyse a case.

Please use the online library to locate and read in full the following
case. Pause this element to enable you to do so.

Roles v Nathan [1963] 1 WLR 1117

The ratio decidendi
An occupier is not liable for the death of a chimney sweep
who was killed by carbon monoxide poisoning because this
is a risk the sweep should appreciate and guard against as
incidental to their specialism.

OR

An occupier is not liable for damage when he calls in a

specialist or professional to deal with a defect on the
premises. The occupier can reasonably expect the
specialist to appreciate and guard against the dangers
arising from the defect which are incidental to their
specialism or profession.
 Fact
Ratio
• Nathan was an occupier as defined
• Occupier by the OLA 1957
• Specialist or professional visitors • Chimney sweeps
• Defect on the premises • Faulty fume system
• Danger arising from the defect • Risk of carbon monoxide poisoning
• The risk incidental to the profession • The sweeps said they knew about
the risks
 Obiter dicta
Read the sections of Lord Denning’s judgment
at pages 1123 & 1124 in the report of the case
in the Weekly Law Reports: [1963] 1 WLR 1117
 Obiter dicta
“If it had been a different danger, as for instance
if the stairs leading to the cellar gave way, the
occupier might no doubt be responsible, but not
for these dangers which were special risks
ordinarily incidental to their calling.”
Lord Denning MR at pages 1123 and 1124
Decisions on questions
of fact
Lord Denning

The risk of carbon monoxide poisoning was a risk incidental to their calling as chimney
sweeps. Alternatively, the warnings given were sufficient to make the sweeps reasonably
safe. Therefore allowed the appeal.

Lord Justice Harman

The risk was a special risk ordinarily incidental to the trade of sweep. But given that the
occupier caused the fire to be lit this may cast doubt on the occupier’s ability to absolve
themselves of liability. However, the warning was sufficient to make the sweeps reasonably
safe. Therefore allowed the appeal.
Lord Justice Pearson

The defendant was entitled to expect the sweeps to some extent to appreciate and guard
against the carbon monoxide risk. However, here the risk was not ordinarily incidental to
the sweeps calling but extra-ordinary because of the use of the defective system by the
defendant. The warning did not enable the deceased to be reasonably safe. Therefore
would dismiss the appeal.
Dissenting judgments
Secondary sources

This element will explore the different types of

secondary source available.
Secondary sources
Overview

In this element you will:

• learn about the different types of secondary source;
• consider which secondary sources are most useful; and
• consider the place of secondary sources in the suggested researching process.
 Secondary sources
(commentary)

practitioner encyclopaedic other reference

textbooks journals
works works works
Secondary sources

Useful general resources:

• Westlaw
• LexisLibrary
• Practical Law (PLC)
• Lawtel
Secondary sources

There are two types of secondary source that you will encounter frequently:

• recognised commentaries; and

• practitioner texts.
Secondary sources

Identify an appropriate
secondary source.

Locate the primary sources.

Secondary source 1: Note
Check that they are still good
the relevant law, list relevant
law. If appropriate use case
primary sources and update
citators to find other relevant
the information.
cases.

Secondary source 2: Note

any new information, list any
new primary sources and
update the information.
Secondary sources: extended research

• Academic books

• Journal articles

• Official government websites

Secondary sources
Summary

• Recognised commentaries and practitioner texts are the most useful secondary
sources.
• Where possible, refer to two secondary sources.
• Always check sources are up to date.
Legal research
method
This element will review the suggested approach to
legal research.
Legal research method
Overview

In this element you will:

• learn about the legal research method; and
• consider each step of the process in detail.
Legal research method: overview

1 2

3
Legal research method: detail
Legal research method
Research mapping: plan your research
Identify the issues requiring research.
Stage Analyse the
Step 1 Identify Consider factual issues and legal
1 issue
issues.
Locate the relevant sources. Start
Step 2 Locate with verified secondary sources prior
to locating relevant primary sources.
Stage Track down
Analyse the law by reference to your
2 the information
Step 3 Analyse client’s particular situation, aims and
objectives.
Step 4 Apply Apply the law to your client’s situation.
Formulate your conclusions, advice
Step 5 Formulate
Stage Communicate and strategies.
3 the solution Communicate the relevant results of
Step 6 Communicate
your research.
Step 1: identify the issue(s)

Summarise the
problem

Formulate your Ascertain the

search terms material facts

Identify the legal

issues arising from
the client aims and
objectives
Step 1: identify the issue(s)

• Start your research with an open mind.

• The law is constantly changing.

• No two sets of facts will be identical.

Step 1: identify the issue(s)

‘duty of care’

‘duty of care’ AND ‘local authority’ AND ‘highway maintenance’

‘child’ ‘minor’ ‘young person’

Step 2: locate relevant sources

• Use credible and appropriate sources.

• Look in the right places for the right answer.

• You may identify further issues and search terms as you research.

• Ensure both primary and secondary sources are up to date.

• Undertake preliminary analysis.

Step 3: analyse the law

• Critical analysis.

• Analyse all sources.

Step 4: apply the law

• Identify practical implications of the requirements of the law.

• Identify material similarities and differences in case law.

• Discuss conflicting case law.

• What if you can’t find any relevant primary sources?

• Do you need further information?

Step 5: formulate your conclusions

• Identify conclusions.

• Use legal reasoning.

Step 6: communicate your conclusions

• Use your writing skills.

• Consider your audience.

Legal research method
Summary

• There are 3 broad stages:

• analyse the issue;
• track down the information; and
• communicate the solution.
• These 3 stages can be broken down further to provide 6 steps to follow.