Government agrees to 15 'principles' for dealing with legal action against the State

Attorney General Rossa Fanning. File picture: Conor McCabe

The Government has agreed to a new set of 15 principles that will dictate how it acts when legal action is taken against the State.

These new principles will call on the State to “act honestly”, “not to take advantage of less well-resourced litigants” and to “apologise where the State has acted unlawfully”.

Attorney General Rossa Fanning SC said they will “clearly articulate” the standards that must be reached by the State and its lawyers when engaged in legal proceedings.

Mr Fanning said it is not intended to “radically change” how the State carried out legal proceedings. 

“The principles may best be described as a codification and public statement of existing best practice," he said. 

Quite simply, 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.

The publication of the principles follows a recent High Court case against the HSE which a woman with cervical cancer had sought to have resolved before her death.

The woman has since died, with the HSE and laboratories refusing a plea to ensure that she would receive general damages after her death if the legal action had been successful.

The Attorney General said “fundamentally, litigation is expensive and time-consuming for all involved”. He said the principles explain how the State will take steps to “avoid, prevent and limit the scope” of any legal proceedings where possible.

“This does mean a greater emphasis on early engagement to try and avoid unnecessary litigation,” Mr Fanning said. “Moreover, the State ought to take steps to resolve disputes between public bodies outside of court.”

The new principles also call on the State to ensure that any legal case brought against it is dealt with “promptly, efficiently and at proportionate cost”.

They also seek to “minimise legal costs for all parties” and to settle when necessary.

A Government spokesperson said that if the State is defending against multiple claims of the same or similar nature, it will try to identify a lead case to “facilitate the efficient and effective administration of justice”.

“The principles are intended to act as guidelines to help maintain existing high standards of ethics and integrity in the conduct of litigation by the State.

“The principles do not, however, contain rules of law, have any binding legal effect or alter the fact that the State has the same entitlements as any other party to litigation.”