The three types of jurisdiction

Introduction

The courts exercise three types of jurisdiction, namely at first instance, on appeal, and supervisory, where the proceedings are by way of judicial review.

Jurisdiction at first instance

Cases which are being heard for the first time are said to be at first instance.

Jurisdiction on appeal

A challenge to a decision reached at first instance will be by way of appeal. The court which hears the appeal is said to have appellate jurisdiction. An appellate court which upholds an appeal will normally be able to substitute its own decision for the one that was reached at first instance. The exception to this proposition is that in appeals by way of case stated (see below), the appellate court will usually be limited to sending the case back to the lower court for further consideration in the light of the appellate court’s judgment. However, in some circumstances, even where an appeal is by way of case stated, the appellate court can direct the lower court to reach a specific decision.

Supervisory jurisdiction

The High Court has, for many centuries, supervised the way in which some lower courts and administrative decision-makers exercise their decision-making powers. This jurisdiction is called judicial review. Although a claim for judicial review may, at first glance, seem to be much the same as an appeal, closer examination reveals a crucial difference. In judicial review, the court will be considering the legality of the decision-making process that produced the earlier decision, rather than the correctness of the decision itself. One consequence of this is that, even if the court upholds a claim for judicial review, its most extensive power will usually be limited to quashing the decision and requiring the decision-maker to reconsider the decision on a lawful basis. The exception to this proposition is that where a lawful decision-making process could result in only one possible decision, the court that upholds the claim for judicial review may simply make that decision itself, without involving the original decision-maker.

Although the essence of the distinction between appeal and judicial review is quite clear, it will be apparent from what has been said that there is some overlap between appeal by way of case stated and judicial review. The explanation for this is complex and involves delving into legal history. We will simply note it and pass on.