The Attorney General, Rossa Fanning, has today published The State Litigation Principles.
These 15 Principles are the first clear statement concerning how the State should conduct litigation and confirm that the State should act honestly, efficiently and in the public interest in the conduct of litigation.
The Attorney noted they are “not intended to radically change how the State conducts litigation”. They do not create rules of law nor do they have any binding legal effect.
The Principles acknowledge that the State cannot be precluded from contesting proceedings, appealing a decision, settling proceedings (with or without admission of liability), relying on legal professional privilege or applying for the recovery of the State’s costs in an appropriate case.
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 and avoid unnecessary litigation.
The Principles advise that, where appropriate, the State will encourage the settlement or compromise of proceedings by the making of settlement offers, tenders or lodgments.
The Principles also emphasise the importance of adherence to best practice in the discovery process. Once ordered or agreed, the State ought to seek to comply with its obligations in a timely fashion, which can be challenging in cases where discovery is extensive.
The Principles also give guidelines on the role of apologies. There are occasions where the Courts determine the State has acted unlawfully. There are also occasions where it emerges in the course of litigation, without judicial determination, that the State has acted unlawfully. In an appropriate case where the circumstances demand it, an apology may be warranted as part of the appropriate response to the litigation.
The Principles recommend the State will seek to agree claimant’s costs without the requirement for formal adjudication and engage constructively on the issue without the requirement for the costs to be formally adjudicated.