The Government adopts new State litigation principles

On 21 June 2023, the Government approved the adoption of 15 litigation principles which will serve as guidelines in the conduct of litigation by the State.
 
During the launch of the new State litigation principles, the Attorney General noted that many of the principles are already applied by officials and lawyers managing litigation on behalf of the State and are “not intended to radically change how the State conducts litigation”. Rather, the principles are seen as a “codification and public statement of existing best practice”.

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 15 litigation principles

The new 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 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 of 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.

For the avoidance of doubt, these principles do not preclude the State from, in an appropriate case:
 

1. Contesting litigation;
2. Appealing a decision;
3. Settling proceedings, with or without admission of liability
4. Relying on the entitlement to assert legal professional privilege; and
5. Applying, where appropriate, for recovery of the State’s legal costs.

There is no doubt that litigation is a costly and time-consuming exercise for the State and as such, the principles explain that the State ought to take steps to avoid, prevent and limit the scope of legal proceedings and endeavour to resolve disputes between public bodies outside of court. In instances where litigation is being pursued, the range of issues in dispute should be kept as narrow as possible. In this regard, 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 more efficiently and will minimise the costs of the proceedings. The principles also encourage the State to take steps to ensure that litigation is dealt with promptly, efficiently and at proportionate cost.

Purpose of the principles

The Attorney General has iterated that the principles will serve the following three important functions:
 

1. By clarifying and explaining existing best practice, the principles 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.
2. The principles 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.
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, one of the reasons why it is so important for the Government to articulate the standards that it seeks to uphold in litigation is set an example and to demonstrate best practice to others.

Conclusion

While the principles do not have any legal binding effect and a failure to comply with them cannot in itself defeat a claim or defence advanced by the State in legal proceedings, the principles serve as an important guidance to the State to act in the public interest to facilitate the efficient and effective administration of justice.

Written by: Maria Curran and Ghezal Wassiee