New litigation principles call for State to act honestly and in the public interest in legal battles

The State should act honestly, efficiently and in the public interest in its conduct of litigation, according to litigation principles approved by the Government.

The 15 principles, published on Wednesday, also mean the State should, where possible, avoid legal proceedings, including suing other State bodies; make settlement offers; defend proceedings in the interest of justice; apologise where the State has acted unlawfully; minimise legal costs; and not take advantage of the less well-off litigant.

Attorney General Rossa Fanning, who drafted the principles, said: “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.”

Intended as guidelines to assist the State in “maintaining high standards of ethics and integrity in the conduct of litigation” and to serve as a positive example to other litigants, the principles are non-binding and not a basis for defeating a claim or defence by the State in litigation.

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The principles are part of a move towards a “model litigant” policy approach, as outlined in the Statement of Strategy 2020-2023 published by the Attorney General’s office, and advocated by, among others, retired High Court judge Ms Justice Deirdre Murphy. They follow criticism over years of strategies pursued by the State in some litigation, including over illegal nursing home charges.

Speaking at Government Buildings on Wednesday, Mr Fanning said the principles “for the first time, clearly articulate standards for the State and its lawyers in the conduct of legal proceedings”.

The principles, he stressed, are “not intended to radically change how the State conducts litigation”. Many, he said, are already applied on a daily basis by officials and lawyers managing litigation on the State’s behalf.

Litigation is expensive and time-consuming for all involved, including the State, he said. To that end, the principles explain the State will take steps to avoid, prevent and limit the scope of legal proceedings, a policy “clearly consistent” with the policy intent under the Mediation Act 2017.

[ First-ever statement of litigation principles to guide State is long overdue and extremely important ]

That means greater emphasis on earlier engagement to try to avoid unnecessary litigation, he said.

The State should take steps to resolve disputes between public bodies outside court and clear channels of communication between officials that will facilitate discussion between public bodies, which is likely to play an important role in avoiding such disputes, he outlined.

There are, he noted, independent bodies and agencies who conduct litigation outside of central government, and a public body has a statutory right to appeal against a decision of an independent authority. While different considerations may apply in such cases, there will be cases where litigation between State entities should be avoided and other means of dispute resolution found.

The principles, the Attorney General said, are best described as “a codification and public statement of existing best practice and will serve at least three important functions”.

Firstly, by clarifying and explaining existing best practice, they will assist Government department officials and lawyers in upholding the high standards already expected of the State, he said.

Secondly, he outlined, they will help explain the State’s approach to litigation and foster a better understanding of how the State serves the public interest when litigating.

Thirdly, although the principles apply only to bodies answerable to the Government, the articulation of standards the Government seeks to uphold in litigation sets an example and demonstrates best practice to others.

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Mr Fanning said the principles do not prevent the State, in an appropriate case, contesting litigation, appealing a decision, settling cases with or without admissions of liability, asserting legal professional privilege and applying for recovery of State costs.

Where litigation is pursued, the range of issues in dispute should be kept as narrow as possible, he said. 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. That would assist the court in deciding the case and minimise the costs.

Where the State finds itself defending multiple claims, it should assist in the identification of appropriate lead cases to facilitate the efficient and effective administration of justice, he added.