The Government on 21 June 2023 adopted 15 State Litigation Principles aimed at “assist[ing] the State in maintaining high standards of ethics and integrity in the conduct of litigation”. The 15 principles were developed following consultation with lawyers who manage the State’s litigation on a daily basis. Speaking at the launch event, Attorney General Rossa Fanning S.C. noted that the Principles “for the first time, clearly articulate standards for the State and its lawyers in the conduct of legal proceedings”. He described the Principles as a “codification and public statement of existing best practice” and noted that the purpose of the non-legally binding Principles was to ensure that the State considers the “broader public interest before taking certain procedural steps in litigation”. Importantly, the Principles do not dilute the legal rights available to the State – they instead provide guidance as to the manner in which those rights should be exercised.
The Attorney General briefly commented on the content of the Principles. On the first Principle (‘avoid legal proceedings where possible’), he noted that the State will wherever possible prevent and limit the scope of legal proceedings (including through non-court engagement) so as to reduce the costs of litigation. On the second Principle (‘deal with claims promptly’), he noted that the State in the course of litigation should avoid unnecessary delay and comply with all relevant timelines. On the third Principle (‘deal with litigation efficiently’), he suggested that this may be achieved by not requiring an applicant to prove a matter which the State knows to be true or which the applicant is likely to succeed in proving at trial. He observed that the fourth Principle (‘identify lead cases when there are multiple sets of proceedings on same legal issue’) arises frequently in State litigation and that, if embraced, can help achieve the fifth Principle (‘minimise legal costs for all parties’).
The Attorney General referenced the State’s power to achieve the sixth Principle (‘make settlement offers, tenders or lodgements’) and emphasised the importance of the seventh Principle (‘act honestly in the course of litigation’ – specifically by providing full and accurate explanations to the Court) and eighth Principle (‘make discovery in compliance with best practice’). On the ninth Principle (‘be consistent across claims’), he noted that the State should respond to parties with similar claims in similar ways. He emphasised the importance of the tenth Principle (‘not to take advantage of the less well-resourced litigant’) and gave his view that the State must assist the Courts to manage claims from such litigants as fairly and expeditiously as possible.
In relation to the eleventh Principle (‘defend proceedings in accordance with interests of justice’), the Attorney General noted that while the State can raise the same defence as any other litigant, it must consider the public interest before doing so – and suggested that if a case has become moot, the State should refrain from pleading that particular defence if the resolution of the legal issue is of societal importance. He similarly noted in relation to the twelfth Principle (‘not to appeal unless there is a reasonable prospect of success or in the public interest’) that the State’s entitlement to pursue an appeal should be relied upon only where there are “sound legal or policy reasons” for doing so.
In relation to the thirteenth Principle (‘avoid bringing proceedings against another State Department or State body’), he noted that disputes between public bodies should – generally – be resolved outside of court. He gave his view that the fourteenth Principle (‘seek to agree claimant’s costs without the requirement for formal adjudication’) would, if embraced, avoid the costs and delay involved in referring the matter to adjudication – but noted that the State remains entitled to apply for the recovery of its legal costs and to enforce any such order. Finally, in relation to the fifteenth Principle (‘apologise where the State has acted unlawfully’), he suggested that a State apology may be warranted in an appropriate case – but gave his view that a technical case involving statutory interpretation would not fall within such a category.
Click here for the Attorney General’s speech.