However, it is clear that, by articulating the very high standards that the Government seeks to uphold in litigation, the principles demonstrate best practice and set a strong example to other organisations, both in the public and private sector, which such organisations may choose to follow.
Practical implementation
There is to be a greater emphasis on earlier engagement to try to avoid unnecessary litigation. This focus on earlier engagement is not unique to the principles. It is also a theme of recent case law.
Recent dicta from the High Court in Sere Holdings Ltd v HSE noted the expensive and time-consuming nature of litigation for all involved and concluded that a State agency should, at least, consider mediation in every dispute in which it is involved.
Twomey J noted that litigation should be the last resort for the resolution of disputes in all cases, and that this was particularly the case in disputes involving the State, given that the taxpayer would ultimately pay the legal costs in the event of a loss (and in some cases, even in the event that the State is successful).
The need to avoid unnecessary litigation will therefore be particularly apparent in the event of a dispute between State bodies, and this is recognised by the principles.
However, that is not to say that there will never be litigation of this type, given that there are many independent agencies and authorities that conduct litigation independently of central government.
In Commissioner of Valuation v Valuation Tribunal, Simons J observed that, while a State body is perfectly entitled to fully contest litigation with other State bodies, “it is in the public interest that State bodies should, where possible, seek to resolve their differences without the need for hard-fought litigation. If and insofar as the normal costs rule, that is, that costs follow the event, might provide even a small incentive to State bodies to adopt a reasonable approach in deciding whether to pursue or defend litigation, then it should not be displaced.”
The principles acknowledge that, in seeking to avoid expensive litigation and limit the scope of any such litigation, alternative dispute resolution (ADR) mechanisms will often be a valuable tool.
This is consistent with the objectives underlying existing legal instruments such as the Mediation Act 2017 and order 56A of the Rules of the Superior Courts.
Section 14 of the Mediation Act obliges a practising solicitor to advise their client to consider mediation as a means of attempting to resolve a dispute that is to be the subject of any proposed litigation.
Under order 56A, the court may invite the parties to use mediation or “another ADR process” to settle or determine the proceedings or issue.
Section 169(1)(g) of the Legal Services Regulation Act 2015 also supports these objectives by permitting a court, in determining costs, to consider any unreasonable refusal by a party to engage in mediation or settlement talks.
Section 21 of the Mediation Act is broadly to the same effect, but is specific to mediation.
As well as ADR mechanisms, the State and its lawyers proactively engage in early intervention strategies, with a particular focus on ensuring that baseless or unmeritorious claims and vexatious proceedings are disposed of early and efficiently, in line with order 19, rule 28 of the Rules of the Superior Courts.
In addition to order 19, rule 28, the court also enjoys an inherent jurisdiction to strike out pleadings or proceedings in some circumstances. Further, it is clear from the 1981 decision of Costello J in Barry v Buckley that “the court is not limited to the pleadings of the parties, but is free to hear evidence on affidavit relating to the issues in the case”.
The principles also give guidance on how the State must deal with circumstances where multiple sets of proceedings arise from similar legal issues.
In general, the State should seek to identify appropriate lead cases with a view to facilitating the efficient and effective administration of justice (Principle 4). In dealing with multiple claims, the State should also act in order to ensure consistency across different claims (Principle 9).
The State must also take account of the difficulties faced by less well-resourced litigants in managing mass litigation as fairly and expeditiously as possible in the interests of all (Principle 10).
Indeed, the principles also emphasise the importance of the State conducting litigation efficiently, with a view to reducing the costs of all parties involved.
Dealing with litigation efficiently
Under the principles, the State will endeavour to conduct litigation efficiently. In practice, this requires the State to endeavour to:
- Make an early assessment of the State’s prospects of success/liability in legal proceedings that may be taken against it,
- Pay legitimate claims without litigation on the basis of a liability assessment, or make partial settlements of claims or interim payments, where it is clear that liability is at least as much as the amount to be paid (Principles 1 and 2),
- Make discovery in compliance with best practice (Principle 8),
- Be consistent across similar claims (Principle 9),
- Carefully monitor legal milestones and, where appropriate, seek to resolve the proceedings, including by way of settlement offers, Calderbank offers, lodgements, tenders, or via recourse to ADR mechanisms (Principle 6).
If it is not possible to resolve proceedings, the State will endeavour to act as a ‘model litigant’ throughout the litigation.
The State will endeavour to conduct litigation efficiently, with an emphasis on narrowing the issues truly in controversy between the parties. This will entail refraining from requiring unnecessary proofs or evidence and will see the State seek to support case-management procedures to assist with the efficient progress of litigation (Principles 5 and 3).
The principles are also consistent with the favourable comment made in respect of the State’s conduct in McManus v Minister for Justice. In this case, the High Court commended the following behaviour of the State:
- The State limited the scope of the legal proceedings (Principle 3),
- The State kept the costs of the litigation to a minimum (in circumstances where, arguably, it was not possible to avoid the litigation, since the State would not be expected to concede that legislation is unconstitutional) (Principle 5), and
- The State did not require the other party to prove a matter that the State knew to be true (Principle 3).
The High Court stated that the focused approach of the State to the litigation led to a 50% saving on court resources, in that the case took a half day of court time, rather than the estimated one day, thereby minimising the costs for all involved.
The interests of justice
Following the principles, the State shall consider the interests of justice in determining how to defend litigation and in considering the different defences that may be available to the State (Principle 11).
This means that, in some cases, the State may consider that it is not appropriate to plead a particular defence, notwithstanding that it is available to the State as a matter of law.
For example, the State should not rely upon a defence that:
- Is not central to the State’s defence of the case, and which would only serve to prolong the litigation, or
- Would require evidence to be adduced by the other party that is already available to or within the procurement of the State.
However, it is important to note that many defences available to the State, in the same way as they are available to any other litigant, support important policies relating to the rule of law, the administration of justice, and the timely resolution of disputes.
It will therefore very often be the case that reliance upon such defences will serve the public interest.
The principles also acknowledge the responsibility of State parties to apologise in appropriate cases but, in particular, where:
- The court has found that the State has acted unlawfully, or
- Prior to any such judicial finding, it has emerged in the course of litigation that the State has acted unlawfully (Principle 15).
Duty to act honestly
It is presumed that all parties to litigation will act with honesty.
Nonetheless, it is expressly stated in the principles that the State will act honestly, seeking to assist the court by providing full and accurate explanations of all relevant matters of which the court requires to be aware on affidavit, in witness statements, and in oral evidence, as appropriate, depending on the nature of the proceedings (Principle 7).
The principles represent a clear articulation of the standards that the State and its legal advisers endeavour to uphold in litigation.
In that context, it is important to bear in mind that the principles are not legally binding, and therefore they are not justiciable before the courts.
In those circumstances, an argument by an opposing party grounded upon a perceived lack of adherence by the State to the principles cannot in and of itself defeat a claim or defence advanced by the State in any legal proceedings.
The principles therefore acknowledge that they cannot preclude the State from contesting litigation, appealing a decision, settling proceedings (with or without admission of liability), relying upon legal professional privilege, or applying for recovery of the State’s legal costs in an appropriate case.
However, the principles nevertheless represent an important statement of the State’s approach to legal proceedings and articulate clear guidelines that will assist the State and the lawyers who act on its behalf in maintaining high standards of ethics and integrity in the conduct of litigation.
Sinéad Finnegan is principal solicitor in the European Law Section, Constitutional and State Litigation Division, Chief State Solicitors’ Office.
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