In addition to his primary role under the Constitution as adviser to the Government on matters of law and legal opinion, the Attorney General has a statutory function to represent the public in all legal proceedings for the assertion or protection of public rights. This function is conferred by section 6(1) of the Ministers and Secretaries Act 1924. This arises most commonly when the Attorney General seeks an injunction to restrain a breach of the criminal law or a public nuisance, such as an interference with a public right of way.
Where a member of the public wishes to enforce a right which belongs to the public as a whole rather than a right which has an exclusively private character or in which the member of the public has a sufficient private interest to entitle him or her to sue in his or her own right, the member of the public can apply to the Attorney General to join in the proceedings for the purpose of enforcing that public right. Where the Attorney General agrees to do so, the action is said to be brought by the Attorney General "at the relation of" the member of the public concerned and the action is known as a "relator action". Where the Attorney General is approached in relation to such a proposed action, he has to make a decision whether to consent to a relator action being brought.
In such a case the Attorney General does not merely lend his name to an action brought by a private individual but the Attorney General becomes the plaintiff with the right to decide how to conduct the case. However in practical terms the invariable practice is that once the Attorney General is satisfied with the basis of the proposed action and the manner in which the action is to be brought, the case is handled by the private individual's solicitor.
The Attorney General decides whether to grant or refuse consent to the bringing of a relator action and may attach such conditions to the grant as he considers appropriate. Without limiting the generality of this discretion in making his decision, the Attorney General may have regard, amongst other matters, to the rights which are alleged to be infringed, the extent of the alleged infringement, the consequences to the public (or a portion of the public) of this infringement, the strength of the case, both legal and evidential, the motives of the relator, the effect of the institution of legal proceedings on the proposed defendant or defendants or any of them, the ability of the relator to honour any undertaking as to damages or to pay any costs awarded against him or her.
If the Attorney General is to consider an application for his consent to the bringing of a relator action the following documentation must be submitted to the Chief State Solicitor:
- A draft of the proposed High Court summons or Civil Bill with a Certificate of Counsel endorsed thereon that it is a proper case for the Attorney General's consent. (It is usual to furnish a copy of the Statement of Claim proposed to be delivered at this stage).
- A Statement of Facts showing clearly the nature of the public right alleged to be infringed and the action of the proposed defendant alleged to infringe this right. This should not only give a general outline of the claim but also indicate the nature and strength of the evidence in support thereof.
- A copy of the summons for issue, on which the Attorney General's consent may be endorsed.
- A certificate from the solicitor for the proposed relator that he or she is to the solicitor's personal knowledge a person of sufficient competence (i.e. financial means) to defray the costs and expenses of the Attorney General and any costs or damages awarded against him or her.
- A written undertaking signed by the relator and witnessed by his or her solicitor undertaking to pay all such costs, expenses or damages.
Conditions for consent for a relator action
The Attorney General may require further information and documentation concerning the case to enable him decide whether or not it is a proper case to give his consent to the bringing of a relator action.
Without limiting the right of the Attorney General to impose further conditions as to the grant of his consent, it is a condition of the grant of the consent that:
- The solicitor for the relator has carriage of the proceedings subject to the requirement that the Attorney General has overall control and direction of the proceedings.
- The Attorney General must be kept informed through the Chief State Solicitor of the progress of litigation and of any steps therein. All communication must be between the Chief State Solicitor's Office and the solicitor for the relator.
- The Attorney General must consent to any subsequent proceedings in a relator action. The Attorney General must approve all draft pleadings prior to delivery and his consent must be obtained for the delivery of same. In addition the Attorney General's consent must be obtained to the amendment of pleadings in the same manner as in the course of original proceedings.
- Any undertaking as to damages is given by or on behalf of the relator and not by or on behalf of the Attorney General. There is an implied undertaking by the solicitor for the relator to ensure that no undertaking as to damages is given by or on behalf of the Attorney General and that any undertaking is given solely by or on behalf of the relator.
- The Attorney General can apply to the Court to have a relator action dismissed. If the relator wishes to stay or discontinue proceedings on terms or otherwise, the relator must first obtain the sanction of the Attorney General.
- A relator cannot appear in person on behalf of the Attorney General. Unless personally present in Court the Attorney General must be represented by a solicitor and counsel.
- An existing action may, with the consent of the Attorney General and the Court, be converted into a relator action in the name of the Attorney General at the relation of a named person. The same requirements apply concerning the consent of the Attorney General.
- The relator exclusively bears all the legal costs of the action and is solely liable to the defendant for any award of costs and/or damages made against the relator if the action is unsuccessful. The Attorney General does not indemnify the relator in relation to any exposure to legal costs and expenses.
These are the main conditions relating to the grant of the Attorney General's consent to the bringing of a relator action. Further details can be obtained from the Office of the Attorney General, Upper Merrion Street, Dublin 2. The Attorney General and the staff of the Office are unable to give legal advice to members of the public. Members of the public should obtain their own legal advice as to the procedures they should utilise in order to enforce public rights.