Privilege in Coronial Proceedings

25 June 2020

Author: Stephanie Johnston
Practice Area: Healthcare
Sector: Healthcare

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The recent Court of Appeal judgement in Ketcher and Mitchell, Re Application for Judicial Review [2020] NICA 31 addresses the important issue of whether litigation privilege attaches to expert reports obtained by properly interested persons in coronial proceedings.

Background

Lance Corporal James Ross and Rifleman Darren Mitchell died within three months of each other at Abercorn Barracks, Ballykinler in 2012 and 2013. An investigation into the deaths was commenced. As part of the investigation, the coroner obtained an expert report from a consultant psychiatrist in relation to both deceased. The appellants (the mothers of the deceased) were dissatisfied with the content of the psychiatric report and decided to obtain their own expert opinion.

The inquest into the deaths was scheduled to take place in May 2018. Shortly before the inquest was due to commence, the appellants’ senior counsel disclosed to the coroner’s senior counsel that a consultant psychiatrist had been retained by them and a report was due to be received. In light of the outstanding matters, the inquest was adjourned until February 2019.

In August 2018, the coroner issued a preliminary decision requiring the appellants to disclose to the coroner the expert psychiatric report they had obtained. In September 2018, both appellants and the Ministry of Defence submitted that the coroner could not require the production of expert reports as they were privileged documents. The coroner did not agree that the psychiatric report was privileged and in October 2018 issued his final ruling, requiring the production of the report. The coroner did, however, note that if the psychiatric report had been obtained for the dominant purpose of civil or criminal litigation, he would have accepted the claim for privilege.

Judicial Review

The appellants brought judicial review proceedings, claiming that the coroner’s reasoning was flawed. They also contended that the coroner had wrongly assessed inquest proceedings as being only inquisitorial, and never adversarial.

Mr Justice McCloskey dismissed their challenge, backing the coroner’s decision to require production of the report.

Court of Appeal

The first instance decision was appealed. In assessing whether litigation privilege applied to the psychiatric report, the Court of Appeal reviewed the case law dealing with litigation privilege.

The Court of Appeal considered the case of Re L (a minor) [1997] AC 16. It was held, by a majority, that there was a clear distinction between privilege attaching to communications between a solicitor and client and that attaching to reports prepared by third parties for the purposes of litigation. The case of Waugh v British Railways Board [1980] AC 521, considered in Re L (a minor), supported the proposition that legal advice privilege attaches to all communications with a client whether related to litigation, or not, but that litigation privilege only extends to documents prepared for the purpose of, or in contemplation of, litigation. (In this matter, the appellants had confirmed that the dominant purpose of the expert report they had obtained was for the purpose of the inquest). The Court of Appeal sets out that it could be extracted from the majority judgement in Re L (a minor) that litigation privilege applies in respect of adversarial proceedings in being, or contemplated. In Three Rivers DC v Bank of England (No.5) [2003] QB 1556, it was held that litigation privilege arises from adversarial proceedings and cannot exist in the context of non-adversarial proceedings.

Litigation privilege was also considered in Three Rivers DC v Bank of England (No.6) [2005] 1 AC 610 in which Lord Carswell set out the conditions for litigation privilege as follows, namely:

  • Litigation must be in progress and contemplation;
  • The communications must be made for the sole dominant purpose of conducting that litigation; and
  • Litigation must be adversarial, not investigative or inquisitorial.

The Court of Appeal went on to consider whether inquests are solely inquisitorial or may be adversarial in nature. It was noted that, whilst many aspects of the coronial process were plainly inquisitorial, the nature of the obligation arising in Article 2 (of the European Convention on Human Rights) inquests gives rise to an adversarial setting between the family and the state body. (That being those inquests relating to deaths where state agencies are involved and Article 2 is engaged). In such inquests, it is stated that “although the coronial process is essentially inquisitorial, for the properly interested person the experience is largely adversarial”.

Despite the above comments, the Court of Appeal, however, held that the case law since Three Rivers DC (No.6) supports the view that inquests are fundamentally inquisitorial and litigation privilege does not, therefore, apply. The appeal was, therefore, dismissed.

It is of significant interest, however, that the Court of Appeal stated, “If we had felt free from authority, we would have favoured the approach of Lord Nicholls in Re L and concluded that litigation privilege should apply in this type of case. Properly interested persons should be free to explore reasonable aspects of investigation without being discouraged by the possibility that their expert reports may need to be disclosed to the coroner and the opposing party.”

The Court of Appeal also commented on the application of Section 17A (4) (b) of the Coroners Act (Northern Ireland) 1959 to directions by the coroner for production of expert reports by properly interested persons. Section 17A (4) (b) requires the Coroner to consider the public interest in the information in question being obtained for the purpose of the inquest, having regard to the likely importance of the information. A relevant factor would be whether the coroner has his own expert evidence and whether any further expert reports are likely to add to such evidence. The Court of Appeal also observed that any public interest calculation should take into account the public interest in encouraging properly interested persons to carry out appropriate investigations in the preparation of their case. It was noted that compulsory disclosure of such reports, as a matter of course, would be likely to discourage such investigations. The Court of Appeal went as far as to express the view that, in such circumstances, it appeared that the balance was highly likely to favour the view that the requirement to disclose the report was not reasonable.

Conclusion

Following this judgement, the position remains that expert reports obtained for the dominant purpose of a civil claim remain subject to litigation privilege. Any expert reports obtained, however, for the dominant purpose of inquest proceedings will not attract such privilege. That is, not, however, the end of the consideration. Before a properly interested party could be compelled to produce such expert report to the coroner and the other parties to an Inquest, Section 17A (4) (b) of the Coroners Act (Northern Ireland) 1959 could be engaged. A careful balancing exercise would then need to be conducted as to whether public interest in the coroner obtaining the report outweighs the public interest in allowing properly interested persons the freedom to fully prepare for inquest proceedings. The comments of the Court of Appeal suggest that it would only be rarely that the balance would fall in favour of a requirement for production of the properly interested person’s expert report.

If you would like any further information or advice, please contact Stephanie Johnston and Francesca Lowry.

*This information is for guidance purposes only and does not constitute, nor should be regarded, as a substitute for taking legal advice that is tailored to your circumstances.

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