Courts need jurisdictional certainty --- otherwise they strike down qualitatively different suits.

As Lord Bridge has said, defining the term ‘jurisdiction’ is difficult, because it has many shades of meaning in different contexts, with new meanings being acquired as the law develops.45 A venerable working test is to examine three questions: in what actions does the court have jurisdiction; to what places is that jurisdiction confined; and to what persons does the jurisdiction extend?46 In Singapore, jurisdiction has been defined as meaning the court’s authority to hear and determine a dispute brought before it.47 For Professor Dockray, at its root jurisdiction means power, or the source of a court’s powers.48

This similarity in meaning between jurisdiction and power has resulted in the terms being used almost interchangeably in this context. For example, adjacent headings in Master Jacob’s article are ‘Powers of the court under the inherent jurisdiction’ and ‘Inherent powers exercisable by summary process’.49 In Singapore it has been held that the term inherent jurisdiction is a misnomer, with a better expression being simply that a court has certain inherent powers.50 This view was expressed by the Singapore Court of Appeal, whose jurisdiction is defined by statute, so it is perfectly understandable that it would prefer the innate nature theory, which would enable it to exercise inherent powers. Under the vesting theory a court that is the creature of statute has no inherent jurisdiction.

In an interesting article51 Chen Siyuan has drawn a distinction between a court’s inherent power to control its own proceedings, and the inherent jurisdiction. Under the innate nature theory all courts will also have incidental case management powers to ensure the fair and efficient progress of proceedings within the court’s express substantive jurisdiction. These could be described as inherent powers. At the extreme, adopting Lord Morris’s approach from DPP v Connelly, all courts on this theory possess an inherent power to strike out for abuse of process.

Master Jacob divided inherent powers to control the court’s process into administrative powers and judicial powers.52 Administrative powers include the power to make rules of court. Judicial powers include what is now striking out for abuse of process. This distinction was recognised by the Privy Council,53 where Lord Denning said: ‘Some of the powers of the Chief Justice are clearly judicial powers, as when he sits in court to decide civil and criminal cases. Others are clearly administrative powers, as when he directs the times at which offices of the court shall be open, or appoints notaries public, or makes rules of court.’ It is easy to see how any court of justice should be regarded as possessing everyday administrative powers of some of the kinds referred to by the Privy Council.

In contrast, inherent jurisdiction goes further than this, and refers to the court’s authority to hear certain disputes or to grant certain remedies (interim or final) beyond those in the express statutory provisions defining the court’s jurisdiction. The example given by Chen Siyuan is the inherent authority to reopen a dispute.54Other examples would be the first development of new forms of orders, such as Norwich Pharmacal orders,55 freezing injunctions,56  Anton Piller orders,57  Bankers Trust orders,58 and protective costs orders.59 Inherent jurisdiction in this wider sense would only be available under the vesting theory. In England, that would mean that such jurisdiction is only exercisable by the High Court.

A similar distinction was identified in Taylor v Lawrence.60 The way it was put by Lord Woolf CJ is that there is a distinction between the question whether a court has jurisdiction, and how it exercises the jurisdiction which it undoubtedly has. So, an appeal court cannot change the categories of appeals that it has jurisdiction to consider, but it has the power to lay down or change the procedures it will adopt in hearing those appeals. In this passage Lord Woolf CJ expressly refers to Master Jacob’s article, which describes procedure making powers as part of the court’s inherent jurisdiction (as opposed to a mere power), explaining that the term ‘inherent jurisdiction’ is used in a number of different senses.