“Corporate Governments” as Model Litigants

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Government Litigants, Corporate Litigants, Model Litigant Rules, Australia, Professional Codes of Ethics, Litigation Conduct, Suggestions for Refom


Government litigants often enjoy power advantages over their opponents, including knowledge, money and experience. These advantages have led some jurisdictions to adopt model litigant rules for governments. One example is the Commonwealth of Australia. The Commonwealth Model Litigant Rules govern conduct in litigation and are in addition to the usual civil procedure, ethical and professional conduct rules that apply to all litigants. Governments and their agencies are held to a higher standard than other litigants because of their nature as public bodies and the resource and power advantages they enjoy over individual citizens.

In this paper, we will suggest that there are similarities between corporations and governments, in particular the power they wield as repeat players, their increasingly public roles and the impacts they have on citizens and communities, that justify applying a model litigant code to them. We begin in Part I by explaining the rationale for the application to governments of model litigant rules. In Part II we identify the similarities between corporations and governments that justify applying model litigant obligations to corporations. We also explore the potential unfairness that can arise when the litigation conduct of government litigants, especially regulators, is constrained by model litigant rules but the corporations against whom they litigate are not similarly constrained. We then consider, in Part III, whether existing professional codes of ethics and civil procedure rules are sufficient, by themselves, to affect the litigation conduct of corporations. We argue that corporate litigation behaviour is more likely to be affected by specific rules for corporations, rather than generic rules applicable to all litigants or to a corporation’s legal advisers. In Part IV we consider the application of modern principles of corporate social responsibility to the litigation conduct of corporations. We conclude that whilst these principles can guide the development of a model litigant code for corporations, they are by themselves too general (and, perhaps, too contested) to be that code. Finally, in Part V we propose an outline of a model litigant code for corporations and we make some suggestions for implementation.