Background<\/h3>\n
When assessing care given to a patient ahead of an inquest, it
\nis not uncommon to obtain independent expert evidence to assist. If
\nthe report has solely been obtained to assist the inquest
\npreparation or the trust’s internal investigations, this would
\nusually be disclosed to the coroner as a matter of routine.<\/p>\n
The position may be slightly different however if the expert
\nevidence has been obtained, at least in part, to investigate the
\npotential of a litigation claim running parallel to the inquest. If
\nthe expert is critical, admissions are usually made ahead of the
\ninquest in the interests of openness and transparency, and these
\nare communicated to the coroner. The approach has recently given
\nrise to an issue in a case however where the coroner ordered that
\nthe basis for the admissions be disclosed, to include a copy of the
\nexpert report. The question arose as to whether the coroner could
\norder disclosure, or whether the report was a privileged
\ndocument.<\/p>\n
What is litigation privilege?<\/h3>\n
Litigation privilege protects confidential written or oral
\ncommunications between a client and their lawyer and between third
\nparties. It is there to protect clients and their lawyers obtaining
\ndocuments without worrying that these documents will be scrutinised
\nby the opposing party.<\/p>\n
One key aspect for litigation privilege to exist is that the
\ndominant purpose must be to obtain legal advice, or to assist or
\naid in the conduct of litigation. Documents are not protected if
\nthey are used in court later, as this makes them a public document
\nand no longer confidential.<\/p>\n
Does litigation privilege stop the coroner from ordering
\ndisclosure?<\/h3>\n
The case of Linda Ketcher and Carol Mitchell -v- One of the
It therefore appears that whether a document can be subject to
This is something for us to be mindful of going forward,
The content of this article is intended to provide a general
POPULAR ARTICLES ON: Litigation, Mediation & Arbitration from UK<\/p>\n<\/p><\/div>\n
\nCoroners for Northern Ireland<\/em>, was heard in the Court of
\nAppeal in Northern Ireland in January 2019. The families in this
\ncase, via their legal representation, obtained a psychiatric report
\nbut did not disclose this to the Court on the basis that it was
\nprotected by litigation privilege. The coroner concluded that no
\nform of privilege attached and ordered it was disclosed. The Court
\nof Appeal in Northern Ireland upheld this decision but did comment
\nthat if this had been obtained for civil or criminal litigation
\nthen he would have upheld the claim for privilege. However, in this
\ncase they found that the report may possibly be used for civil
\nlitigation but that was no more than a subsidiary purpose, and only
\na potential one at that. __<\/em><\/p>\n
\nprivilege or not, depends on the primary purpose it was obtained
\nfor. In the inquest into the death of Saxon Bird, the coroner found
\nthat primary rationale for litigation privilege is the contribution
\nit makes to adversarial litigation. Given inquests are
\ninquisitorial and not adversarial, if a report is obtained for the
\ninquest, not the claim, it is likely that privilege will not
\nattach.<\/p>\n
\nespecially when obtaining an expert report on the basis of a
\nspeculative claim, rather than a confirmed one.<\/p>\n
\nguide to the subject matter. Specialist advice should be sought
\nabout your specific circumstances.<\/em><\/p>\n<\/div>\n
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