Re Ketcher and Mitchell, [2020] NICA 31 (judgment here) 3 June 2020.

There has rightly been increasing emphasis since the Mid Staffs inquiry and other high media profile investigations, such as Hillsborough, on the responsibility of public bodies to be open and candid in all of their dealings with the Coroner.  Whilst legislation falls short of imposing a statutory duty of candour in respect of inquests, the expectation many will have of our public bodies is that they will do all they can to assist the coronial investigation in ascertaining the truth of how a person came to die, regardless of any reputational consequences or fear of future litigation.  Indeed the Ministry of Justice has recently published the Government's protocol that sets out the principles it expects to guide the behaviour of Government Legal Department lawyers and those they instruct at inquests. This includes an exhortation to "approach the inquest with openness and honesty, including supporting the disclosure of all relevant and disclosable information to the coroner" which they suggest should be a 'model of behaviour' for all interested persons. (see here at Annexe A)

Against that background this recent decision from the Northern Irish Court of Appeal may seem rather out of kilter with the laudable aim of openness.  Although expert evidence obtained solely for the purpose of an inquest will not, say the NI CA, attract litigation privilege, any compulsion to disclose such a report will, in the view of the Court, be highly likely to be unreasonable as being contrary to the public interest in encouraging interested persons to investigate and prepare their own cases. 

Notably however, the context here was an expert report obtained on behalf the bereaved families in an Art 2 inquest – it is more difficult predict whether,  if it were a public body seeking to supress relevant evidence in an Art 2 inquest, the public interest balance would still be drawn in the same place.

The Background

The appellants were the mothers of two soldiers found dead as a result of hanging at Barracks in Northern Ireland.  They considered that the psychiatric expert instructed by the Coroner had not addressed systemic issues and did not provide detail on the operation of any systems and procedures the Ministry of Defence (MoD) had in place to identify and treat problems with stress and associated risks of self-harm/suicide in relation to each of their sons.  Although the appellants had issued protective civil proceedings in England, they agreed, that the dominant purpose of instructing their own psychiatric expert was to obtain evidence for the purpose of the inquest:  it was notably not contended that the use of this expert report in civil proceedings was part of any wider purpose of the instruction.

The relevance of the report was not in issue: there was no dispute that it bore on the issues to be investigated and determined by the Coroner. However, both the appellants and the MoD argued that the Coroner could not compel its disclosure by the appellants, as the report was privileged.  Against that background the Coroner concluded that privilege did not attach to the report and required the appellants to disclose it to him pursuant to section 17A(1)(b) of the Coroners Act (Northern Ireland) 1959 (“the 1959 Act”).[1]

The appellants brought Judicial Review proceedings seeking to set aside the disclosure order (see [2019] NIQB 4 here). At first instance McCloskey J upheld the Coroner’s decision, noting that litigation privilege is confined to adversarial proceedings and that the essential purpose of an inquest is inquisitorial.

The judge determined that, as the report was entirely unconnected with the extant English litigation it would not be protected from production in civil proceedings in a court in Northern Ireland on the ground of litigation privilege. He considered that the exportation and deployment of a private law adversarial mechanism into the forum of coronial proceedings was inappropriate and the report should be disclosed.

The bereaved mothers appealed that decision to the Court of Appeal.  The appellants’ principal arguments were that litigation privilege prevented such disclosure and that coronial proceedings involving an Article 2 claim give rise in any event to litigation privilege.

When does litigation privilege arise?

It was common ground that legal professional privilege comprises both legal advice privilege and litigation privilege. Legal advice privilege applies to all communications between a client and his legal adviser for the purpose of obtaining advice. Litigation privilege applies to documents produced, not necessarily by a lawyer, predominantly for use in or in the promotion of litigation.

The House of Lords had considered the reach of litigation privilege in Re L (a minor)[2] where Lord Jauncey gave the speech on behalf of the majority. He held that there was a clear distinction between the privilege attaching to communications between solicitor and client and that attaching to reports by third parties prepared on the instructions of a client for the purposes of litigation. The majority considered that in non-adversarial and investigative proceedings, such as under the Children Act 1989, where the issue is what is in the best interests of the child that it was so far removed from normal actions that litigation privilege had no place in relation to reports obtained by a party to those proceedings.

However, Lord Nicholls for the minority had argued that the crucial question was not whether and to what extent the proceedings were inquisitorial rather than adversarial. The question was what was required if the proceedings were to be conducted fairly. For Lord Nicholls the right to a fair hearing (including the right to present one’s case and obtain informed legal advice in confidence) prevailed over the public interest in having all relevant material available to the court determining the matter.   Also, notably, the majority did not go so far as to say that in all investigative proceedings litigation privilege is excluded by necessary implication.

Subsequently, in Three Rivers DC v Bank of England (No 6) [3] Lord Carswell set out the conditions for litigation privilege:

(a) litigation must be in progress and contemplation;

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

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

Although these conditions were not part of the ratio, all the other members of the court in Three Rivers (No 6) had agreed with Lord Carswell.

But are coronial proceedings adversarial?

In the instant appeal the Court recognised that there are many aspects of the coronial process that are inquisitorial. However the Court felt this was not the whole story, and particularly in an Article 2 inquest involving an allegation of state responsibility for the death, the representatives of the family of the deceased are protecting their private interests and “trying to achieve an opposing outcome to that of the state body”.  

The Court of Appeal considered that the very nature of the obligation arising under Art. 2 gave rise to the adversarial setting between the family and the state body. The Court quoted from the influential Angiolini report [4];

“The reality is that Inquests into deaths in police custody are almost always adversarial in nature. This has been the unanimous opinion of Coroners, lawyers and families who have given evidence to this review. There is nothing inherently wrong with an adversarial approach as it may be the best way to robustly test evidence in court. However, it needs to be recognised as such. The expectation that the Coroner can meet the family’s interests during the inquest is wholly naïve and unrealistic as well as unfair to families and to the Coroner.”

The NI Court of Appeal considered that this ‘demonstrates that although the coronial process is essentially inquisitorial, for the properly interested persons the experience is largely adversarial.’

Litigation privilege does not arise when reports are created for inquests

It is plain that the NI Court of Appeal felt constrained by the case law – indeed almost frustrated – and that they favoured Lord Nicholls’ minority approach in Re L: an approach that would permit properly interested persons 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. But, bound by Three Rivers, they found that inquests are fundamentally inquisitorial and so held that litigation privilege does not apply to reports produced for the Coronial setting.

The public interest will usually favour non-disclosure

However, having felt so constrained the Court then went on to emphasise that the non-applicability of legal privilege was not the end of the matter.  The Court gave a nod and a wink that verged on a pinch and a punch that had an application been made under section 17A(4)(b) of the 1959 Act[5] requiring the Coroner 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.’ Such an application would, or should, have succeeded and the report would not have to be disclosed.

The Court of Appeal set out their reasons why, even in the absence of litigation privilege the public interest, would nevertheless not usually favour disclosure.  In particular:

  • The coroner here already had a report from an expert that he had felt was a sufficient basis for proceeding with the inquest.
  • In most cases reports obtained by interested persons would have been obtained for the dominant purpose of the civil claim, therefore there would be no power to require disclosure of that privileged report in those cases.
  • As part of the public interest calculation, the Coroner had to take into account the public interest in encouraging properly interested persons in inquests to carry out appropriate investigations in the preparation of their cases.
  • Compulsory disclosure of such reports as a matter of course would be likely to discourage such investigations.

In those circumstances it appeared to the Court that the balance was highly likely to favour the view that a requirement to disclose the report was not reasonable.

The position in England and Wales

Whether this decision will now be followed in England and Wales remains to be seen, particularly as the ‘disclosure is not in the overall public interest’ argument is obiter to the core issue of the non-existence litigation privilege in respect of reports only obtained for an inquest. 

When applying the CJA 2009 Sch. 5 para. 1 (5) principles a Coroner might not only consider the view of the NI Court of Appeal but also pay heed to the observations of Baroness Hale of Richmond in Three Rivers at [61] who noted that where legal professional privilege applies its effect is to restrict the power of a court to compel the production of what otherwise would be relevant evidence and this ... may thus impede the proper administration of justice in the individual case”. Whilst impediments of this kind, where they occur because of litigation privilege, simply have to be accepted, surely the issue is also fact sensitive, and so what furthers the proper administration of justice in the individual case will not always support relevant expert opinion evidence being withheld from the Coroner.

In the meantime, those who wish to keep an expert report, or an internal review, away from a Coroner need only ensure that their letter of instruction, or introduction to the internal review, clearly articulates that its dominant purpose is to consider issues of civil liability and then litigation privilege will clearly apply.

 

[1] This legislative provision is equivalent to a disclosure order under the Coroners and Justice Act 2009, Sch. 5 para 1 (1) (b) as in force in England and Wales.

[2] [1997] AC 16

[3] [2005] 1 AC 610 at [102].

[4] Report of the Independent Review of Deaths and Serious Incidents in Police Custody, January 2017 at paragraph 16.57.

[5] Similarly in England and Wales under CJA 2009 Sch. 5 para. 1 (4) (b) and (5) a requirement to produce documents can be revoked on the grounds that it is not reasonable in all the circumstances to comply and in determining the matter the coroner must consider the public interest in the information being obtained, having regard to its likely importance.