Government Adopts State Litigation Principles

On 21 June 2023, the Government adopted State Litigation Principles which seek to guide the State in maintaining high standards of ethics and integrity in the conduct of litigation. The 15 Principles represent the first clear articulation of the standards the State should uphold in legal proceedings. It is hoped that the Principles will serve as a positive example to other litigants.

The 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.

Attorney General Rossa Fanning SC stated that the role of the Principles is not "to radically change how the State conducts litigation". Rather, it is expected that the adoption of the Principles "will clarify and explain existing best practice". He suggested that the Principles may best be described as a codification and public statement of existing best practice.

Not surprisingly, the Principles expressly state that they do not preclude the State from "in an appropriate case":

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

Ultimately, while the Principles do not have any binding legal effect, their publication is a welcome and commendable written articulation of the State's desire to maintain high standards of ethics and integrity in the conduct of litigation.

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