State to avoid legal action if possible, under principles

State Litigation Principles that will serve as guidelines in the conduct of litigation by the State have been approved by the Government.

The 15 principles recognise the imperative that the State should act in the public interest, broadly construed, in pursuing litigation, and should consider the broader public interest before taking certain procedural steps in litigation.

The principles apply where the State, through the Government, a minister of the Government, a department of State or an agency under its direct control, engages in litigation.

In an address yesterday in Government Buildings (21 June), Attorney General (AG) Rossa Fanning SC said: “Given the high volume of litigation managed by the State, it is important that we explain the general approach and policy adopted by the State in this domain.  

“These principles will, for the first time, clearly articulate standards for the State and its lawyers in the conduct of legal proceedings. They will set out how the State can and should behave in its capacity as a litigant, as a party to a given dispute before the courts.”

The AG said: “The principles are not intended to radically change how the State conducts litigation. Many of these principles are already applied on a daily basis by the officials and lawyers charged with managing litigation on the State’s behalf.

“The principles may best be described as a codification and public statement of existing best practice," he added.

“Quite simply, the State should act in the public interest, broadly construed, in pursuing litigation and should consider this broader public interest before taking certain procedural steps in litigation.

The AG stated: “in drafting the principles, I have had regard for the best endeavours that the State must strive to make in fulfilling the very high standards which are expected of its conduct. While the principles do not seek to radically change existing practice or policy, I believe that they will serve at least three important functions."

Best practice

“Firstly, by clarifying and explaining existing best practice, they will assist officials in the different Government departments, and the lawyers acting on their behalf, in upholding the high standards already expected of the State.

“Secondly, they will assist in explaining the approach of the State to litigation and foster a better understanding of how the State serves the public interest when litigating.

“Thirdly, although the Government decision to approve the principles does not, in itself, apply to litigants other than the Government itself and bodies answerable to Government, one of the reasons why it is so important for the Government to articulate the standards that it seeks to uphold in litigation is to set an example and to demonstrate best practice to others.”

The AG added that “fundamentally, litigation is expensive and time-consuming for all involved, including the State.

“To that end, the principles explain that the State will take steps to avoid, prevent and limit the scope of legal proceedings, wherever this is possible – a policy that is clearly consistent with the policy intent underlying the Mediation Act, 2017.

“This does mean a greater emphasis on early engagement to try to avoid unnecessary litigation. Moreover, the State ought to take steps to resolve disputes between public bodies outside of court.”

Clear communication

Clear channels of communication between officials to facilitate discussion between public bodies would likely play an important role in avoiding such disputes, the AG stated.

“This is not to say that there will never be litigation of this type. There are many independent agencies and authorities that conduct litigation independently of central Government,” he continued.

“It may also be that a public body will have a statutory right to appeal against a decision of an independent authority and, in some cases, therefore, different considerations will apply. Nevertheless, there will be cases where litigation between State entities should be avoided and other means of resolving the dispute should be found.”

The principles also state that, where litigation is pursued, the range of issues in dispute should be kept as narrow as possible.

The State should not require 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. This will assist the court in determining the issue at hand and will minimise the costs of the proceedings.

Proportionate cost

Where litigation is being pursued, the State must take steps to ensure that it is dealt with promptly, efficiently and at proportionate cost.

The State will often find itself defending multiple claims on the same or similar questions and, in those circumstances, the State should seek to assist the court and other litigants by identifying appropriate lead cases in order to facilitate the efficient and effective administration of justice, under the principles.

The principles are intended to act as guidelines to help maintain existing high standards of ethics and integrity in the conduct of litigation by the State.

The principles do not, however, contain rules of law, have any binding legal effect or alter the fact that the State has the same entitlements as any other party to litigation.

15 principles

The principles are:

1.    Avoid legal proceedings where possible,

2.    Deal with claims promptly,

3.    Deal with litigation efficiently,

4.    Identify lead cases when dealing with multiple sets of proceedings on same legal issue,

5.    Minimise legal costs for all parties,

6.    Make settlement offers, tenders or lodgements,

7.    Act honestly,

8.    Make discovery in compliance with best practice,

9.    Be consistent across claims,

10.  Not to take advantage of the less well-resourced litigant,

11.  Defend proceedings in accordance with the interests of justice,

12.  Not to appeal unless there is a reasonable prospect of success, or in the public interest,

13.  Avoid bringing proceedings against another State department or State body,

14.  Seek to agree claimant’s costs without the requirement for formal adjudication,

15.  Apologise where the State has acted unlawfully.