Inquests, expert reports and litigation privilege

In the matter of an application for Judicial Review by Linda Kercher and Carol Mitchell [2020] NICA 31

The first thing to say is that this decision of the Court of Appeal in Northern Ireland does not bind the courts in England and Wales but may be persuasive should the issue arise in other UK coronial jurisdictions.

The decision of the Northern Ireland Court of Appeal (NICA) illustrates an important point for those involved in coronial proceedings on the issue of litigation privilege – and whether an expert report prepared for the purposes of an inquest is covered by the principle of litigation privilege. In this case, the NICA concluded that it is not.

The issues in the case

The case concerned a coroner’s decision to request disclosure of an expert report prepared on behalf of the families of two soldiers who died at Abercorn Barracks in December 2012 and February 2013.

The families objected to the request on the grounds that section 17A and 17B of the Coroners Act (NI) 1959 (as amended) provided that a person may not be compelled to produce a document if he could not be compelled to produce the document in civil proceedings in Northern Ireland. The families argued that they were entitled to rely upon the common law principle of litigation privilege in connection with the inquest proceedings. However, it was the coroner’s view that inquest proceedings were non-adversarial and different from civil proceedings and therefore litigation privilege did not apply.

The NICA agreed with the coroner and the argument that litigation must be adversarial and not investigative or inquisitorial before litigation privilege can be claimed. In reaching its decision, the NICA relied on Lord Carswell’s conditions for litigation privilege to apply as set out in Three Rivers DC v Bank of England (No 6)[2005] AC 610 (HL) that:

“(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.”

However, it is worth noting the NICA’s view that:

“If we had felt free from authority, we would have favoured the approach of Lord Nicholls in Re Land 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. Those investigations could only be beneficial to the task of the coroner. We consider, however, that the clear thrust of the case law since Three Rivers DC (No 6) supports the view that inquests are fundamentally inquisitorial and litigation privilege does not apply.”

The citation for the Re L (a minor) case is [1997] AC 16.

In conclusion, the NICA noted the provisions of section 17A(4)(b) of the 1959 Act. It observed that no application under that provision was made by the families to the coroner and that should such an application be made, the coroner is “required to consider the public interest in the information in question being obtained for the purposes of the inquest having regard to the likely importance of the information”.

It is this context that the NICA had trouble understanding “why the public interest of the coroner in obtaining the report in this case was particularly strong since the interest of the family in preparing their case would normally outweigh it”. They concluded that “it appeared to us that the balance was highly likely to favour the view that a requirement to disclose the report was not reasonable”.

Learning points

This case illustrates in clear terms the definition of litigation privilege and the conditions required before privilege will apply. It also sets out a mechanism for objecting to disclosure on the grounds of reasonableness.

Inquest practitioners in England and Wales will be aware of the decision in the Worcestershire case and the Chief Coroner’s Law Sheet No. 3  dated 24 January 2014. The benefit of this case for coroners is “the extent to which they may justifiably ask for material which they reasonably believe may assist them in their investigation". It is of course to be noted that the reports required to be disclosed in that case were not in any event expert reports obtained in contemplation of litigation or for the purpose of an interested person preparing its case before the coroner.