UK:

A Coroner’s Powers In Respect Of Expert Reports And How Litigation Privilege Plays A Role In These Circumstances


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Background

When assessing care given to a patient ahead of an inquest, it
is not uncommon to obtain independent expert evidence to assist. If
the report has solely been obtained to assist the inquest
preparation or the trust’s internal investigations, this would
usually be disclosed to the coroner as a matter of routine.

The position may be slightly different however if the expert
evidence has been obtained, at least in part, to investigate the
potential of a litigation claim running parallel to the inquest. If
the expert is critical, admissions are usually made ahead of the
inquest in the interests of openness and transparency, and these
are communicated to the coroner. The approach has recently given
rise to an issue in a case however where the coroner ordered that
the basis for the admissions be disclosed, to include a copy of the
expert report. The question arose as to whether the coroner could
order disclosure, or whether the report was a privileged
document.

What is litigation privilege?

Litigation privilege protects confidential written or oral
communications between a client and their lawyer and between third
parties. It is there to protect clients and their lawyers obtaining
documents without worrying that these documents will be scrutinised
by the opposing party.

One key aspect for litigation privilege to exist is that the
dominant purpose must be to obtain legal advice, or to assist or
aid in the conduct of litigation. Documents are not protected if
they are used in court later, as this makes them a public document
and no longer confidential.

Does litigation privilege stop the coroner from ordering
disclosure?

The case of Linda Ketcher and Carol Mitchell -v- One of the
Coroners for Northern Ireland
, was heard in the Court of
Appeal in Northern Ireland in January 2019. The families in this
case, via their legal representation, obtained a psychiatric report
but did not disclose this to the Court on the basis that it was
protected by litigation privilege. The coroner concluded that no
form of privilege attached and ordered it was disclosed. The Court
of Appeal in Northern Ireland upheld this decision but did comment
that if this had been obtained for civil or criminal litigation
then he would have upheld the claim for privilege. However, in this
case they found that the report may possibly be used for civil
litigation but that was no more than a subsidiary purpose, and only
a potential one at that. __

It therefore appears that whether a document can be subject to
privilege or not, depends on the primary purpose it was obtained
for. In the inquest into the death of Saxon Bird, the coroner found
that primary rationale for litigation privilege is the contribution
it makes to adversarial litigation. Given inquests are
inquisitorial and not adversarial, if a report is obtained for the
inquest, not the claim, it is likely that privilege will not
attach.

This is something for us to be mindful of going forward,
especially when obtaining an expert report on the basis of a
speculative claim, rather than a confirmed one.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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