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.