Is an expert report prepared for the purposes of an inquest covered by litigation privilege?

2 September 2021 by

In the matter of an application for Judicial Review by Linda Kercher and Carol Mitchell [2020] NICA 31; [2020] Inquest L.R. 76

A niche question, but an important one for those in the field, particularly as the Northern Ireland Court of Appeal has found that it is not.

The case concerns a coroner’s decision to seek disclosure of an expert report prepared on behalf of the families of two soldiers who were found dead at their barracks. The families resisted disclosure relying on s.17B(2)(a) of the Coroners Act (Northern Ireland) 1959, which provides that a person cannot be compelled to produce a document to a coroner if he or she could not be required to do so in civil proceedings in Northern Ireland. (An equivalent provision for England and Wales is found at para. 2(1)(a) of Schedule 5 of the Coroners and Justice Act 2009.) The expert report, they argued, attracted litigation privilege. The coroner’s case was that as inquests were non-adversarial they were not litigation, and hence no privilege could be asserted.

NICA found for the coroner, with reluctance. Had it had a blank sheet, it would have held that litigation privilege applied. There were good reasons why it should do so, not least as it allowed for a participant in an inquest to take reasonable steps to inform and prepare its position (see the dissenting speech of Lord Nicholls in  Re L (a minor) [1997] AC 16). However, the court considered itself bound by the majority in Re L and the authority of Three Rivers District Council and Others v Gov of the Bank of England (No 6) [2005] 1 AC 610 (HL), and in particular the conditions for litigation privilege set out as [102] by Lord Carswell in the latter case:

(a) litigation must be in progress and contemplation;

(b)  the communications must be made for the sole or dominant purpose of conducting that litigation; and

(c)  litigation must be adversarial, not investigative or inquisitorial.

Although the court found for the coroner on the point before it, the victory was pyrrhic. Morgan LCJ, delivering the judgment of the court, joined the High Court in questioning the wisdom of the coroner’s decision to seek disclosure of the report. The coroner had already instructed his own expert, whose report he had found to be satisfactory; what public interest was there in seeking disclosure of the families’ report in what appears to have been an unprecedented way? The court invited the families to consider an application under s.17A(4)(b) of the 1959 Act, which provides that a person can resist disclosure to the coroner on the basis that it “is not reasonable in all the circumstances to require him to comply with such a notice” (see also para. 1(4)(b) of Schedule 5 of the 2009 Act for England and Wales). The court’s view (obiter) was 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’ [37].

Lessons

Those involved in the coronial proceedings may wish to take note of this judgment, and in particular the tight definition of litigation privilege. However, properly interested persons should be aware of the alternative basis for resisting disclosure provided by the relevant statutory provisions on reasonableness. Coroners will no doubt read the final paragraphs of the NICA judgment and ask themselves whether seeking disclosure of such reports is really appropriate in the first place.  

It should also be noted that where an expert report is prepared for the ‘dominant purpose’ of adversarial litigation, privilege will apply as long as the other two conditions set out in Three Rivers (No. 6) are also met.

There is a further implication of the judgment that is of practical interest. The 2009 Act makes it a criminal offence to ‘suppress or conceal’ a document where it is likely that the coroner ‘may wish to be provided with it’: para. 7(2)(a) and 7(3) of Schedule 6. If an expert report is not covered by litigation privilege, then it is at least possible that a coroner may wish to be provided with it. That being so, is there an obligation on those connected with an inquest to inform the coroner about the existence of such a report, even if they do not wish to rely on it in evidence? 

NB The judgment was handed down in June 2020, but has only recently been made available online.

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