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Government lawyers and the ethics of instructing experts

By: Mark Tottenham BL

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When the State is involved in litigation, do different ethical considerations apply than those concerning other litigants?

In a recent paper by Ms Justice Deirdre Murphy and others, entitled ‘The Role and Responsibility of the State in Litigation’ (2020) Irish Judicial Studies Journal Vol 4(1), pp 77–90, it has been suggested that the State should act as a ‘model litigant’. This concept is based on Australian authorities. The suggestion is that the State should hold itself to a higher standard than other litigants, and avoid the procedural rough-and-tumble of adversarial litigation.

The concept was elaborated upon in a book by Gino Dal Pont, Lawyers Professional Responsibility in Australia (2006), pp 296–297, in which he wrote:

“[G]overnment lawyers’ conduct must be above reproach and be seen to be above reproach. In conducting litigation government lawyers should act in an exemplary fashion and in a manner indicative of those standards that lawyers representing private litigants should seek to emulate.” (Emphasis added)

The first question is what this means in practice. Some guidance has been received already from the High Court of Ireland in McManus v Minister for Justice and Equality and Ors [2021] IEHC 385, a challenge to the constitutionality of a mandatory minimum sentence of a drugs offence. Mr Justice Twomey cited the paper by Ms Justice Murphy in his ruling on costs and held that the State had acted in an appropriate manner in limiting the scope of the legal proceedings; keeping the costs of litigation to a minimum; and not putting the other party to the time and expense of proving matters that the State knew to be true.

The obvious question that arises is whether it is only the State that should be kept to such a standard. In much litigation, there is an ‘inequality of arms’ between individual private litigants and large, well-funded litigants such as banks, insurance companies, or multi-national companies. Should these companies not also act as ‘model litigants’, in order to ensure that the court focuses on the matters truly at issue?

In England and Wales, this issue of inequality of arms was fundamental to the Woolf Reforms in the late 1990s. Lord Woolf was keen to ensure that one party was not overwhelmed by the other. In fact, Rule 1.1(1) of the Civil Procedure Rules now states that the ‘overriding objective’ of the rules is to enable the courts ‘to deal with cases justly and at proportionate cost’. The phrase ‘overriding objective’ is commonly used in written judgments dealing with procedural matters in that jurisdiction.

So, what are the implications for instructing expert witnesses? Expert evidence commonly adds to the expense of litigation, and can be used cynically by well-resourced parties to overwhelm the other side.

Steps that are widely used in England and Wales, and are provided for in some Irish rules, include:

(i) Instructing a ‘single joint expert’. This is provided for in personal injuries cases in section 20 of the Civil Liability and Courts Act 2004, and Order 39, Rule 58 of the Rules of the Superior Courts, although rarely invoked to date. Such experts are widely used in Family Law cases under section 47 of the Family Law Act 1995. The English case of Daniels v Walker [2000] EWCA Civ 50; [2000] 1 WLR 1382 provides a useful summary of how such experts can be relied upon, while being open to challenge.

(ii) Agreeing an early exchange of report. The Rules of the Superior Courts have different provisions in this regard for personal injuries cases than other cases.

(iii) Putting written questions to experts. This can be a useful way of narrowing down the issues, and is now provided for in the Rules for some cases, although seems not to be widely invoked.

(iv) Meetings between experts. This has long been encouraged by the courts, both here and elsewhere (see Graigola v Swansea Corporation [1928] 1 Ch 31, and the comments of Mr Justice O’Donnell (as he then was) in Emerald Meats Ltd v Minister for Agriculture and Ors [2012] IESC 48).

Of course, the requirements of the ‘model litigant’ extend well beyond the instructing of an expert witness. For an example of where the State has been held to have failed in this regard, see the comments of Mr Justice Charleton in Zalewski v Adjudication Officer and Ors [2021] IESC 24; [2021] 32 ELR 213, where the applicant succeeded in establishing that the Workplace Relations Commission should administer justice in a manner similar to that of the courts. Citing Ms Justice Murphy’s article, Mr Justice Charleton held that the State had been under an obligation to explain the deficiencies experienced by the applicant, and had failed to do so:

No decision on anything was made: no reasons; no vindication of the case made by anyone; no basis for seeking fresh employment with a clean record; no basis for saying the dismissal was correct for some substantial reason related to competence or qualification” (p. 225).

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