Inherent jurisdiction and inherent powers of irish courts

AuthorJoan Donnelly
PositionPost-graduate Research Student, Sheffield University
Judicial Studies Institute Journal [2009: 2
The notion of a court’s “inherent jurisdiction” is familiar
to legal practitioners. Counsel frequently exhort the court to
utilise its inherent jurisdiction in response to failures of
procedural justice, whilst, in the absence of a specific statutory
jurisdiction, the concept is often invoked by judges to give
efficacy to judicial proceedings. “Inherent jurisdiction” is
generally understood as referring to the panoply of implied
powers which are exercisable by judges for the purpose of
regulating curial processes. The difficulty of formulating legal
principles to capture the shifting and dynamic nature of the
jurisdiction has been the subject of both academic and judicial
commentary. One commentator has described a court’s “inherent
jurisdiction” as “so amorphous and ubiquitous and so pervasive in
its operation that it seems to defy the challenge to determine its
quality and to establish its limits”.1 An Australian judge, in his
analysis of the jurisdiction, has commented:
What is this species of jurisdiction? We have all heard
Judges anxious to make obviously just orders, but
uncertain of an express statutory authority, resorting,
sometimes – I have thought, rather coyly – to the
inherent jurisdiction of the court. We have also heard
inadequately prepared Counsel, inviting resort to the
* Post-graduate Research Student, Sheffield University. The author expresses
her gratitude to Professor Philip Joseph of the University of Canterbury for
sharing his insights on the distinction between “inherent jurisdiction” and
“inherent powers”. A word of gratitude to Michael Cush S.C. who drew to my
attention relevant corporate case-law falling into my area of research. Any
person wishing to make a comment about this article may contact the author at
1 Jacob, “The Inherent Jurisdiction of the Court” (1970) 23 Current Legal
Problems 23.
2009] Inherent Jurisdiction and Inherent Powers 123
inherent jurisdiction, and being chided by a Judge who
is acquainted with a specific statutory authorisation.2
The concept of a court possessing “inherent jurisdiction”
is unsettling to a lawyer educated in a constitutional tradition
founded on the separation of powers and the supremacy of
parliament. The idea of an auxiliary stream of jurisdiction
existing in parallel to constitutionally authorised sources of
jurisdiction seems to cut across the parameter of Article 15.2 of
the Irish Constitution vesting the “sole and exclusive function of
making laws” in the Oireachtas. Another cause for unease is the
jurisdiction’s apparently limitless character, inviting the prospect
of judges, unconstrained by the gravitational pull of precedent,
invoking the jurisdiction to justify all manner of eccentricity in
In this essay, it is proposed to examine the origin, juridical
basis and scope of the court’s inherent jurisdiction. It is intended
to demonstrate that judges are, in fact, misinterpreting and
misapplying the term “inherent jurisdiction” and confusing it with
another quite distinct concept – that of a court’s “inherent
powers”. By sifting through the tangled jumble of precedents in
this area, it will be attempted to thematise the judicial
interventions giving rise to courts’ inherent jurisdiction and
inherent powers and to propose formal categories for classifying
the functions falling within the ambit of these concepts.
The doctrine of inherent jurisdiction is a creature of the
English common law. Baron Alderson’s decision in Cocker v.
Tempest3 in 1840 is often cited as the originating point for the
emergence of the doctrine. He commented “the power of each
court over its own processes is unlimited; it is a power incident to
all courts, inferior as well as superior; were it not so, the court
would be obliged to sit still and see its own process abused for the
purpose of injustice”. The modern restatement of the doctrine
2 De Jersey, “The Inherent Jurisdiction of the Supreme Court” (1985) 15
Queensland Law Society Journal 325, 326.
3 Cocker v. Tempest (1841) 7 M & W 501.
Judicial Studies Institute Journal [2009: 2
finds expression in two divergent strands of case-law. In 1981, in
Bremer Vulkan Schiffbau und Maschinenfabrick v. South India
Shipping Corporation Ltd,4 Lord Diplock described the inherent
jurisdiction as a power enabling the court to do acts necessary in
order to enable it to maintain its character as a court of justice.
He remarked “it would stultify the constitutional role of the High
Court as a court of justice if it were not armed with power to
prevent its process being misused in such a way as to diminish its
capability at arriving at a just decision of the dispute”.5
A contrasting strand of case-law, however, characterises
the inherent jurisdiction as a substantive jurisdiction, an
unspecified or residual jurisdiction vesting unlimited authority in
certain courts to hear any matter where the jurisdiction has not
been ousted by statute or other rule. Thus, in the Canadian case of
80 Wellesley St. East Ltd v. Funday Bay Builders Ltd,6 the court
stated that “[e]xcept where provided specifically to the contrary,
the Court’s jurisdiction is unlimited and unrestricted in
substantive law in civil matters”.7
An even broader view of the jurisdiction was taken in Re
Residential Warranty Co. of Canada Inc.8 in which it was stated
that the inherent jurisdiction co-exists with statutory jurisdictions,
and a judge is not precluded by codification of the law from
invoking his inherent jurisdiction where the benefits of granting a
particular remedy outweigh the detriment caused by its
application. Commenting on these trends in Canadian
jurisprudence, Farley has observed, “[f]ar from being restricted to
process, inherent jurisdiction is fundamental to ensuring that
justice is done substantively”.9
It can be seen from a cursory review of the case-law on
the doctrine of inherent jurisdiction that judicial perspectives on
5 [1981] A.C. 909, at 977.
6 80 Wellesley St. East Ltd v. Funday Bay Builders Ltd. [1972] O.J. No. 1713
7 Quoted in Farley, “Minimize codification by expanding use of inherent
jurisdiction”, The Lawyers Weekly, (2007) November, available at
8 Re Residential Warranty Co. of Canada Inc. [2006] A.J. No. 1304 (CA).
9 Farley, “Minimize codification by expanding use of inherent jurisdiction”
(note 7).

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