State Litigation Principles 2023

On 21 June 2023, the Government adopted 15 State Litigation Principles which will serve as guidelines to assist the State in maintaining high standards of ethics and integrity in the conduct of litigation.

Attorney General Rossa Fanning SC stated that “many of the principles are already applied on a daily basis” by those acting on behalf the state, however the publication is a codification of existing best practice and will, for the first time, “clearly articulate standards for the State and its lawyers in the conduct of legal proceedings”.

 

The State Litigation Principles are as follows:

  1. Avoid legal proceedings where possible.
  2. Deal with claims promptly.
  3. Deal with litigation efficiently.
  4. Identify lead cases when multiple sets of proceedings on same legal issue.
  5. Minimise legal costs for all parties.
  6. Make settlement offers, tenders or lodgments.
  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.
  16. 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.

The principles, in appropriate cases, do not preclude the State from:

(a) Contesting litigation

(b) Appealing a decision

(c) Settling proceedings, with or without admission of liability

(d) Relying on the entitlement to assert legal professional privilege

(e) Applying, where appropriate, for recovery of the State’s legal costs.

 

Purpose of The Principles

The Attorney General has stated the principles “do not radically change existing practice or policy”, but they will serve three important functions:

  1. By clarifying and explaining existing best practice, the Principles will assist State officials in upholding the high standards already expected of the State.
  2. 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.
  3. 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, they will set an example and demonstrate best practice to others.

 

Conclusion

The newly published State Litigation Principles require that State parties act in the public interest when pursuing litigation and should consider the broader public interest before taking certain procedural steps in litigation. The Principles explain that “the State will take steps to avoid, prevent and limit the scope of legal proceedings wherever possible” consistent with the Mediation Act 2017. Furthermore, where litigation is pursued, the State will deal with the matter promptly, efficiently and at proportionate cost.

The Principles will not have any binding legal effect and failure to comply will not in itself defeat a claim or defence advanced by the State.