Are expert reports in inquests privileged?

About 12 years ago, in a converted town hall somewhere in the Midlands, a row of sombre-suited and rather chastened-looking advocates are quietly packing up their files, laptops and other paraphernalia. It has been a lengthy pre-inquest review hearing, and the coroner looks over his half-moon spectacles and addresses the assembly:

“Oh and by the way, if any of you are thinking of obtaining an expert report, then it’s mine — you got that?  You instruct them, you pay for it, and then you hand it straight over to me. It’s an inquest, and at the end of the day you’re all here with one purpose in mind and that’s to assist me, understood?”

Fast forward to 2020, and it transpires that those remarks still stand as the Court of Appeal in Northern Ireland has determined in a recent application for judicial review; Ketcher and Mitchell [2020] NICA 31. In this case, the applicants were the mothers of two soldiers who sadly died at their barracks. They commissioned an expert report in response to a report prepared by a consultant psychiatrist instructed by the Coroner. The applicants sought judicial review of the coroner’s decision to compel their disclosure of their report and contended that it was subject to legal privilege. They also claimed that the disclosure of the report placed them at a disadvantage to state authorities, contrary to Article 2 of the ECHR.

Examining the role of litigation privilege in inquest proceedings

12 years ago, the remarks of Lord Carswell in Three Rivers District Council and Others v Gov of the Bank of England (No 6) [2005] 1 AC 610, were still relatively recent dicta: ‘communications between parties or their solicitors and third parties for the purpose of obtaining information or advice in connection with existing or contemplated litigation are privileged, but only when the following conditions are satisfied: (a) litigation must be in progress or in contemplation; (b) the communications must have been made for the sole or dominant purpose of conducting that litigation; (c) the litigation must be adversarial, not investigative or inquisitorial.’

Mr Justice McCloskey now supports the remarks made in Three Rivers in Ketcher and Mitchell by confirming that litigation privilege does not apply to inquests. To conclude otherwise would be at variance with the established statutory rules and common law principles which combine to invest the inquest process with a unique legal culture and ethos in which the public interest predominates and is furthered by the core elements of investigation, enquiry and fact finding. This is the context in which the legislature devised the new statutory provisions and of which, by well-established principle, it must be taken to have been aware. [76]

Whether it be the view from the witness box or from the Interested Person’s (“IP”) spot on the front row, an inquest can certainly appear adversarial in nature, especially when one of the IP’s is aspiring to an outcome diametrically opposed to that of another. However, that is not the intention and an inquest remains a fact-finding, inquisitorial, investigative process. The case law subsequent to Three Rivers supports that, as the court accepted – litigation must be adversarial and not investigative or inquisitorial before litigation privilege can be claimed. [27]

The Public Interest in Coroners Act (Northern Ireland) and expert reports

However, and as the Northern Irish Court observed, that is not the whole story when it comes to Article 2 inquests, in which the obligations on the coronial process are enhanced. The court cited a 2017 review into deaths in police custody, which found that inquests in such circumstances are almost always adversarial in nature and need to be recognised as such. Had it not been for the established line of case law, the court would have preferred to find in favour of the appellants and that litigation privilege should apply in this kind of case. Accordingly, the court invited the appellant to consider an application under a provision contained in the Coroners Act (Northern Ireland) (1959), Section 17A(4)9b) which required the coroner to consider the public interest in the information being obtained for the purpose of the inquest. There is no direct equivalent in England and Wales, the key provisions in relation to disclosure are set out in Rules 13-15 of the Coroners (Inquests) Rules (2013). Nevertheless, it will be interesting to see whether IPs appearing in England and Wales seek to make tangential reference to this recent decision, citing the public interest consideration.

Summary

1. Expert reports predominantly for an inquest can never be privileged, as inquests are inquisitorial and not a forum for adverse litigation
2. NHS Trusts and NHSR/insurers can still secure litigation privilege over expert reports so long as they are obtained purely to deal with the threat of civil or criminal litigation and not for the inquest.
3. Privilege can still be waived by those who have commissioned a privileged report.