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Significant Litigation Directions

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On 16 April 2012, Cabinet issued the Significant Litigation Directions.

The Directions apply to all agencies. The Chief Executive of an agency must ensure that the agency has processes in place to meet the requirements of the Directions. The Directions apply to civil litigation involving agencies whether as a party or otherwise, and litigation involving a person whom the State has agreed to indemnify for costs or liability in respect of the litigation.

The Directions state the principles and practices for managing significant litigation matters, and specify notification and reporting requirements that all agencies are required to comply with. The Directions articulate the roles and responsibilities of those who are likely to be involved in the conduct of significant litigation.

An assessment of whether or not a matter is or could be significant litigation is to be made on a case by case basis. The Directions list a number of considerations that may be used to give guidance to determine whether litigation is significant litigation.

Some considerations include whether the matter has whole-of-government implications; the size of the claim against the State; whether the identity of the parties raises sensitive legal, political or policy issues which are sensitive for the State; whether the matter has attracted or is likely to attract community and media attention and the like.

The Directions provide that advice should be sought from the Department of Justice and Attorney-General’s Legal Services Coordination Unit if there is any doubt about whether or not a matter is a significant litigation matter.