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

The Government’s approval of litigation principles to guide government departments and State bodies in the conduct of litigation is an important development.

Drafted by Attorney General Rossa Fanning, the 15 principles mark the first clear statement concerning how the State should conduct litigation.

In light of several controversies over the years about the State’s conduct of some litigation, including in defending claims over decades concerning illegal nursing home charges, such a statement is long overdue. Other controversies included the defence of the action brought by a dying Co Donegal woman, Brigid McCole, aimed at finding the truth behind the infected blood products scandal of the 1990s. Ms McCole was among many who contracted hepatitis C from the infected products.

Some of the controversies may have stemmed from failures of government rather than failures of lawyers. “Lawyers give advice, it’s not always taken,” as one senior source put it. The principles are aimed at both and designed to encourage better communication between government departments and agencies.

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Admirably clear and succinct, the principles may be distilled into a policy statement that the State should act honestly, efficiently and in the public interest in the conduct of litigation. That, according to the principles, means acting honestly, promptly and efficiently; avoiding and settling litigation and apologising where appropriate; defending cases in the interest of justice; minimising legal costs and not taking advantage of poorer litigants.

The Attorney said on Wednesday 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”.

There may, some legal sources suggested, be divergent political and legal views about what is in “the public interest, broadly construed”. How that plays out in practice remains to be seen.

The Attorney said the principles were “not intended to radically change how the State conducts litigation” and that many are already applied daily to the State’s conduct of litigation. Some legal sources took issue with that, particularly concerning the State’s resistance to costs applications in some matters, but others defended the State’s approach as reasonable given its obligation to manage public monies efficiently.

The principles reflect a continuing move by the State towards a “model litigant” policy approach, as set out in the strategy statement of the Office of the Attorney General 2020-23, and akin to that pursued in Australia. The model litigant approach has been strongly advocated by retired High Court judge Deirdre Murphy, most recently in an interview with The Irish Times.

While the principles are very much in line with the Australian model litigant approach, a legal source said there was “one important difference”, that the Irish principles do not say the State will pay legitimate claims against it without the need for litigation.

“The State has a constitutional obligation to protect and vindicate the rights of citizens,” the source said. “How can it ever be in the public interest not to pay a legitimate claim against the State?”